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Letters to the Editor

 

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• Docex 82, Pretoria 

• E-mail: derebus@derebus.org.za 

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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Are you entitled to obtain a copy of a deceased person’s will from the Master of the High Court’s office?

 

I bring the following relevant information for the attention of practitioners.

 

Section 5 of the Administration of Estates Act 66 of 1965 provides as follows:

 

‘5. Records of Master’s office, etc

 

1) Each Master shall, subject to the provisions of regulations made under section 103, preserve of record in his office all original wills, copies of wills certified in terms of section 14 (2), written instruments, death notices, inventories and accounts lodged at his office under the provisions of this Act or any prior law under which any such documents were lodged at the office of the Master, Orphan Master or registrar of deeds in the province concerned, and such other documents lodged at his office as the Master may determine.

 

2) Any person may at any time during office hours inspect any such document (except, during the lifetime of the person who executed it, a will lodged with the Master under section fifteen of the Administration of Estates Act, 1913 (Act No. 24 of 1913)), and make or obtain a copy thereof or an extract therefrom, on payment of the fees prescribed in respect thereof: Provided that any executor, trustee, tutor or curator, or his surety, may inspect any such document or cause it to be inspected without payment of any fee’ (my emphasis).

 

Recently, relying on this section, I applied to the Master’s Office for a copy of such a will and duly paid the prescribed fee. Instead of receiving a reply from the Master, together with the copy, I received a letter from the Deputy Information Officer at the Department of Justice, advising me as follows:

 

‘Your request to have access to documents held by the Department of Justice specified by yourself as:

 

The Last Will(s) and Testament(s) of the Late X that have been lodged with the Master of the High Court.

 

Having carefully considered your application and having applied my mind thereto, I  regret to inform you that I am unable to provide the documents as requested for the reasons set out below in terms of the Last Will(s) and Testament(s) of the late X, the requested documents contain personal information (such as names) of those whose details are on the document.

 

I consider that the disclosure of those documents could be highly detrimental to the individuals involved and could reasonably be expected to endanger their lives or physical safety. Notwithstanding the need for disclosure in the light of the factors already referred to.

 

I refuse this request, first because, it would constitute an unreasonable disclosure of highly personal information in terms of s 34(1) of [the] Promotion to Access to Information Act 2 of 2000.

 

Secondly, because its disclosure could reasonably be expected to endanger the lives or physical safety of the individuals whose details are on those documents.

 

The documents also contain information that was supplied in strict confidence by a third party. The information was supplied after their confidentiality was guaranteed, so we are unable to breach our understanding.

 

Further, the nature of our work and need to obtain information from various third parties, to enable us to carry out our function in the public interest, may be jeopardised by the disclosure of information supplied in confidence. This request is therefore refused in terms of s 37(1)(b) of the Promotion of Access to Information Act.

 

The above decision has been carefully considered in terms of the Promotion of Access to Information Act.

 

Kindly be advised that you can lodge an appeal in terms of the provisions of s 74(1) of the Promotion of Access to Information Act within 180 days of receipt against this decision to the Minister of Justice Deputy Information Officer’.

 

The Promotion of Access to Information Act applies to ‘the exclusion’ of the Administration of Estates Act and supersedes this Act where there is a conflict between the two.

 

It would, therefore, seem that it is quite possible to frustrate an inquiry by an attorney into the affairs of an estate.

Mervin Messias, attorney, Johannesburg

 

 

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