Deed of assumption of a co-executor by an executor who has been appointed by the will of the deceased.



Power of Assumption

Power of Assumption in a Will
In terms of Section 52 of the Administration of Estate’s Act an executor may not substitute any other person to act in his place. However, a
power of assumption can be granted to an executor which enables him to apply the Mater of the High Court for the appointment of a co-executor
to assist him in his duties. Once appointed the co-executor will have equal responsibilities and obligations to that of the first executor.

The power of assumption can only be exercised if the will contains a provision conferring it upon the executor.

The following documents need to be submitted by the executor to the Master of the High Court:

• a deed of assumption signed by both the executor and his/her nominee;

• an acceptance of trust as executor signed by the assumed executor (form J190 accessed from: www.justice.gov.za/master/m_forms/J190.pdf);

• original letters of executorship;

• a bond of security, unless exempted from furnishing security in terms of the will, or in terms of section 23(2)(a) of the
Administrations of Estates Act (the nominee is a parent, child or surviving spouse of the deceased).

Example of a deed of assumption Deed of Assumption

Estate Late John Smith
Master’s ref 1234/2020
I, the undersigned Dean Smith, in my capacity as executor in the estate
of the late John Smith (no 1234/2020), hereby assume Sarah Smith as
co-executor.
Signed at ____________________ on___________________________
____________________________ Dean Smith
I, Sarah Smith, accept assumption as co-executor in the estate of the
late John Smith (no 1234/2020).
Signed at ____________________ on___________________________
____________________________ Sarah Smith
If the Master is satisfied that the nominee is not disqualified from being an executor then the nominee will be formally appointed and the Master
will endorse the letter of executorship already issued to the executor to the effect that the nominee is an assumed executor.

Last will and testament

A will, also known as a testament, is a written legal document in which a testator sets out what must happen to their estate when they die.
In order for a will to be valid it must have been executed in accordance with the formalities prescribed by section 2(1) of the Wills Act:
• the will must be signed at the end by the testator or by some other person in the testator’s presence and made by his direction;

• the signature must be made in the presence of two or more competent witnesses present at the same time and in the
presence of the testator, or the other person directed by the testator;

• each page of the will must be signed anywhere on the page by the testator or by such other person. The last page of the will must be signed at the bottom.

The will must also be made freely and voluntarily, with a clear intention of constituting a testamentary document.

Drafting of a will
There is no particular form prescribed by law for a will, but depending on the circumstances, a suggested order for the various clauses is as
follows:

1. Declaration of testamentary intention:

Example

I, John Smith, identity number __________ unmarried and
presently domiciled at and resident in _______________ declare
this to be my last will and testament.

2. Revocation of previous wills and testamentary documents:

Example

I hereby revoke all previous wills made by me.

3. Nomination of executor:

The testator should nominate a person or persons who will be responsible for the administration and winding up of his estate
after his death. It is wise to nominate an alternative person or persons as executor(s) thereby making provision in the event that
the first nominated executor cannot or does not wish to accept his nomination.
4. Legacies and beneficiaries:

The beneficiaries (heirs and legatees) are those persons or institutions who inherit the testator’s estate and must be described
accurately. Provision should be made for the substitution of beneficiaries who are incapable or does not wish to inherit from the testator.

A legacy can consist of any asset which can be alienated, whether movable or immovable, corporeal or incorporeal. The subject
matter of the legacy should be accurately described.

5. Bequest of estate or residue thereof whether absolutely, conditionally or upon trust:

Bequest of whole estate:
I bequeath my entire estate to my wife, Sarah Smith;

Bequest of the residue:
I bequeath the remainder of my estate to my son, James Smith.

6. If a trust is created, the appointment of the trustees, their powers and duties, and further conditions applicable thereto:

Example
Where any of my children are under the age of 21 years old when they receive an inheritance from my estate, I provide that the
inheritance of such child/children shall be held in trust by my trustee with the following powers and purposes:
• To sell, buy, rent out or lease or encumber with a bond or otherwise deal with it to the benefit of the trust beneficiaries;

• To invest and reinvest funds and to deal with the proceeds thereof to the benefit of the trust beneficiaries;

• To apply the income, and if necessary, the capital of the trust for the maintenance, education and general benefit of the trust beneficiaries;

• To terminate the trust when the last trust beneficiary thereof reaches the age of 21, and to pay the remainder to the
aforesaid trust beneficiary or, in the case of immovable property, to transfer.

In this case the trustee will be appointed in the clause wherein the executor was nominated in the will.

7. Execution clause.
It is advisable to insert the date and place of execution and to confirm that the will has been signed by the testator in the
presence of the witnesses, and also that the witnesses signed in the presence of each other and the testator.


Power of assumption in a trust
Generally, a trust deed provides trustees with a power of assumption which entails that trustees can appoint additional trustees to act with
them. A power of assumption may be provided unconditionally or only on the occurrence of a certain event, such as a vacancy.
The terms of the trust deed need to be considered in order to determine whether there are requirements affecting the trustee’s power of
assumption, such as the requirement to have a minimum number of trustees.

The founder of a trust should therefore be mindful and consider their personal circumstances when drafting trust deeds, especially regarding
clauses dealing with the appointment and removal of trustees and how decisions are made in the trust.