A Cape Town attorney has been removed as the executrix of her late sister's estate, valued at approximately R8.48m, after the Western Cape High Court found she used estate funds to finance legal proceedings in her personal capacity.

The court also barred the attorney from being appointed as trustee of a testamentary trust intended to benefit her late sister's minor twin children, finding her personal interests had become entangled with her fiduciary responsibilities. 

The Mercury reports that acting Judge M Louw ordered the attorney's removal after an application was brought by the father of the twins, who sought to protect their interests as the principal beneficiaries of the estate.

The attorney was the deceased's identical twin sister, maternal aunt and godmother of the children, as well as a beneficiary of the estate.

She had been nominated in her sister's will to serve as trustee of the testamentary trust established for the twins and was later appointed executrix of the estate.

However, the administration of the estate became embroiled in years of litigation, including a dispute concerning R5.6m that had been paid into the attorney's trust account before her sister's death.

The deceased had received the money from a RAF claim, and it was subsequently transferred into an investment account held in the attorney's name.

The twins' father later launched proceedings seeking an account of the R5.6m. The dispute reached the SCA, which dismissed the accounting application.

The High Court emphasised the latest case concerned a different question: whether the attorney was entitled to use money belonging to the deceased estate to pay the legal costs of defending that litigation.

According to The Mercury, the father argued that estate funds had been used to pay millions of rands in legal fees to Spamer Triebel Attorneys, although the litigation had been brought against the attorney in her personal capacity.

The precise amount of estate funds used to pay the legal fees was disputed, with figures of approximately R3.1m and R3.4m appearing in papers.

But Louw said the key question was whether the attorney was entitled to use estate funds to finance her defence.

The judge found that she was not.

Louw found the earlier accounting application had been directed against the attorney personally and the deceased estate had only been cited in her nominal capacity as executrix.

The court rejected the attorney's explanation she had acted on legal advice when authorising payment of the legal costs from estate funds.

The court said the attorney, being a practising lawyer herself and someone administering a deceased estate, should have understood the difference between defending a personal legal claim and incurring expenses on behalf of the estate. 

The judgment found that this conduct created a clear conflict between the attorney's personal interests and her fiduciary duties as executrix.

Full report in The Mercury

Judgment