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Understanding Eviction Problems in Deceased Estate Property Sales
Whilst it's frequently the case that bargain property purchases may be obtained from property sales from deceased estates, it is equally common that the sales are problematic (e.g. with family members refusing to vacate the property); so it is no surprise that during the last month there have been 2 Western Cape High Court matters involving the eviction of the adult children of the deceased.
Daughter evicted after Estate sells home to cover debts
This judgment in Sage vs Picard handed down in our local Western Cape High Court on the 18th August 2026 clarifies a common point of confusion regarding deceased estates, testamentary trusts, and property transfers. The deceased left the residue of her estate - including a home in Constantia and a share in a farm - to a testamentary trust. The will gave the trustees the discretion to allow her children to live in the home. However, the estate lacked the liquidity to cover its debts and administration costs.
To solve this, the executors sold the properties before they were ever transferred to the trust. One of the daughters, currently living in the Constantia house, tried to block the sale and her resulting eviction. She argued that because the property was bequeathed to the trust, it became "trust property" immediately upon death. Therefore, she claimed the executors (who were also the named trustees) acted unlawfully by selling it.
Judge Le Grange ADJP dismissed the daughter's application and ordered her eviction. The judgment highlighted a strict, foundational legal boundary:
- Property bequeathed to a trust does not bypass the Administration of Estates Act. It remains strictly under the executor's control until the liquidation and distribution account is finalised and the property is formally transferred.
- An estate's debts must be settled first. If there is insufficient cash, executors have the power - and the duty - to realise assets, even if a will suggests retaining them.
- The fact that the executors were also the nominated trustees did not mean they were acting as trustees when they sold the property. They acted lawfully in their capacity as executors.
- A discretionary clause in a will allowing beneficiaries to use a house does not create an unconditional legal right to occupy it, especially if the estate needs to liquidate the asset.
If you are inheriting property via a testamentary trust, neither you nor the trustees control it until the executor formally transfers the property. If the deceased estate is illiquid, that property can be sold out from under you to cover liabilities.
Other evictions from deceased estate properties
- This 17 Aug 2026 judgment of the Western Cape High Court orders adult children refuse to vacate their home in Robertson, after they challenge the eviction order order claiming another will exists (which they never produce). The Court dismissed the children's application with a punitive costs order.
Deceased Estate Information
If a relative has died, perhaps without a will, and you are unsure of what to do:
- Report deceased estate to the Master online
- Steps to take when your parent dies without a will.
- Lawyers in Cape Town specialising in deceased estates.
- Administrators in Cape Town for deceased estates.
- Letter of executorship requirements in South Africa.
- J192 form - next-of-kin (if no will)
- Nomination to act as executor (if no will)
- J190 form assistance
- Administration of deceased estates in South Africa.
- Property:
- Inheritance and child maintenance obligations.
- Intestate Succession Act
- Tracking deceased estates
- Death of a spouse before divorce is finalised
Wills
- How to write a will.
- Example of a last will and testament.
- Get your will drafted for free (by a lawyer).
- List of lawyers that draft wills in Cape Town.
- Consider updating your will when these events occur:
- when divorcing; to avoid your ex-spouse possibly inheriting everything.
- death of somebody mentioned in your will,
- the birth of a child you may want to include in your will,
- marriages
Connect with a Deceased Estate Expert today
Deceased Estate discussion forum
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