National Will Register SARWT

South African

Registry of Wills and Testaments

Estate Firearms

Proposed Ways of Dealing with Estate Firearms

Contributor: R van der Westhuizen

Estate firearms have lately been a great headache to executors, liquidators and trustees alike.

I am of the opinion that our country has an exceptional firearm heritage that must be preserved for posterity. However, it frequently appears as though firearms in deceased estates are being merely regarded as a nuisance that is to be disposed of immediately so as to finalize the process as quickly as possible.

Executors must be made aware of the fact that highly valuable firearms have been in South African estates for many years – private firearm collections in excess of R5 million are fairly common. Many British shotguns, for example a 12 gauge side by side Holland & Holland shotgun made at the turn of the 1900’s, can have a value in excess of R1 million. To merely dispose of these firearms in order to wind up an estate can result in valuable assets being lost and may constitute negligence on the part of such executor. Furthermore, the proper inclusion and realisation of the correct values can have a huge effect on the actual inheritance of heirs and, ultimately, the executors’ fees related to the winding up of a deceased estate that contains firearms.

Previous Dispensation

Under the previous Act on Firearms and Ammunition, Act 75 of 1969, as amended, an heir was entitled to license an inherited firearm as an “Heirloom”. The act as well as the SAP 271 application form, that was to be submitted, made provision for inheriting a licensed firearm. The heir merely had to “tick” the appropriate reason for wanting to license the specific firearm.

The executor completed and signed the SAP 271 application form and the applicant then, after completing and signing his part thereof submitted same, together with a copy of the Executors appointment by the master of the High Court as well as a letter form the executor stating that the applicant inherited the said firearm, could apply for a license to the SAPS and that was normally the end of the matter.

No further motivation was required and very few of such applications were refused.

Current Dispensation

The aforesaid dispensation drastically changed in 2004 when the new Firearms Control Act, Act 60 of 2000, (“the new act”) came into effect. Under the new act, inheritance is no longer acknowledged as a valid and acceptable reason for licensing and possessing a firearm. This constitutes a breach of, not only every individual’s Common Law right to inherit an asset, but also of his Constitutional right to dispose of, acquire and own property.

All prospective applicants now also have to pass a proficiency test for each type of firearm and apply for a Competency to Possess a firearm at the SAPS prior to applying for the actual license.

Under the new act the only acceptable reasons for possessing a firearm are:-
1.    Self-defence;
2.    Occasional hunting and /or sport shooting;
3.    Dedicated hunting and/or sport shooting;
4.    Dedicated private collection;
5.    Business purposes – security services / professional hunting / game lodges etcetera.

Inheritance per se thus no longer constitutes a valid and acceptable reason for licensing an heirloom and any application motivated on the basis of inheritance will be refused. In order to be successful an applicant now has to extensively motivate the intended use of the inherited firearm in relation to one of the abovementioned categories of use. In addition hereto, an applicant also has to comply with the other requirements and limitations applicable in terms of the new act.

Proposed Ways Of Dealing With Estate Firearms

Executor to ascertain whether the estate has firearms and whether the heirs are interesting in licensing all or some of a deceased estate’s firearms.

It is of paramount important for the executor to ascertain whether any new estate has firearms registered in the name of the deceased. The executor becomes responsible for the deceased’s firearms the moment that he / she is appointed by the Master and technically has to take control and safeguard all assets in the estate. In the event that an estate firearm is lost the executor may well end up being prosecuted for such loss.

Once the executor has confirmed the existence and whereabouts of the estates firearms he has to ascertain whether the deceased bequeathed a firearm to a specific heir in his will and whether the heir intends to accept and license such firearm. If the specific heir does not accept the inheritance or if no specific bequests were made the executor must find out whether the other heirs are interested in licensing the firearm/s.

If no heir is prepared to accept and license any firearm in the estate, the executor has to obtain a proper written valuation of the firearms from a qualified expert in the firearms field before disposing of the firearms – the local gun dealer may be convenient but is not always qualified to properly evaluate a firearm. One frequently hears about the highly valuable firearms that are being handed into the SAPS registers for destruction merely because the executors of heirs do not want to make the effort to ascertain or do not really comprehend the true value of the firearms being disposed of.

Once the true value of the estate’s firearms has been determined the executor has the following options:-

  1. If the value is low the executor can proceed to dispose of the firearm to the SAPS for destruction;
  2. If the value of the firearms is high and no heir wants to license the firearms the executor can either dispose of the firearms to a registered gun dealer or through an international firearm broker. The benefits of disposal to a local dealer are that the firearms are immediately transferred to dealer stock and no longer form part of the estate. The negative implication is that the dealer will probably pay a greatly reduced value as he also wants to realize a profit. Alternatively, the executor can sell the firearms in the open market or make use of the services of international firearm brokers who will export the firearms to be sold on the European / US markets and possibly at a much better return. The negative implications to selling to the public or overseas are that it does not necessarily alleviate the general problems surrounding firearm applications and exports, can take a long time to finalize and that there are no guarantees.
  3. In the event that the heirs do want to license some or all of the firearms, the executor has the following options:-
    1. to keep the firearms in safekeeping pending the heirs’ successful licensing application – however very few executors have access to proper firearm storage facilities to do this;
    2. to hand the firearms to the SAPS for safekeeping – this is not advisable and must be avoided at all costs as the police often lose or accidentally destroy these firearms. Very few are also returned in the same condition or complete once collected;
    3. to transfer the firearms to a registered firearms dealer for safe keeping, against payment of the storage fees by the heirs, pending the heir’s successful licensing application – it is important to ensure that the storage agreement is between the heir and the dealer as the storage costs can become considerable over time (and where multiple firearms are being stored) and will constitute an additional burden on the estate;
    4. to grant the heir/s, provided that a specific heir is already a licensed firearm owner, authorisation to privately store the firearm/s pending the outcome of the said heir’s licensing application. This requires that the executor and heir complete and sign an official “Temporary Authorization to Store” that is available from the SAPS.  This alternative is highly recommended, cost effective and extremely easy to arrange. Storage permits are normally issued for a period of one year and can also be easily renewed.

Executors will be well advised to rethink their approach to dealing with firearms that form part of deceased estates as it will not only safeguard them against possible claims for professional negligence but also potentially have a noticeable effect on the fees that they are allowed to levy for the successful winding up of a deceased estate.

*Author: Rudolf van der Westhuizen,
15 July 2016
Rudolf van der Westhuizen Attorneys - Randburg, , 011-886 1800