November 21, 2017

Deceased estates and maintenance claims

I have come across a few estates where the deceased has left a will and the children are appointed as the heirs. A maintenance claim was then lodged against the estate by the surviving spouse. The children would then argue that the spouse is not entitled to the maintenance and lodged an objection against the Liquidation and Distribution Account. The Master would then decide whether the objection should be sustained.

The Surviving Spouses Act provides that if a marriage is dissolved by death, the surviving spouse shall have a claim against the deceased’s estate for the provision of reasonable maintenance, to the extent that the surviving spouse is not able to provide for his or her own maintenance. The claim is lodged with the Executor. The Executor needs to determine whether the claim is a reasonable maintenance claim and whether the claim should it be included in the account. The maintenance claim must be carefully considered as this claim will have an influence on the inheritance of the heirs. Section 3 of the Surviving Spouse Act confirms the factors that need to be considered in determining the reasonable needs of the surviving spouse.

The SCA made a very interesting order in Van Rooyen Friederich & others v Louw Smit NO & others 1028/2015 {2017} ZASCA on the 23rd of March 2017. The issues to be determined arose from the estate of the deceased. The Appellants were the adult children of the deceased from a previous marriage. The second Respondent was married to the deceased out of community of property without accrual, and their marriage still subsisted at time of his death. The deceased appointed his children as heirs in his final will. The surviving spouse filed a maintenance claim against the estate, which the Executor allowed and included in the Liquidation and Distribution account. The Appellants lodged an objection against the account with the Master of the High Court stating the surviving spouse could only claim reasonable maintenance if she could not support herself through her own income and means.

The Appellants alleged that the spouse could support herself and that she did not have a factual basis for claiming maintenance from the estate. They further argued that should the maintenance claim be allowed, they then would object to the magnitude thereof. The Master decided that the objection was sustained and that the quantum may either be agreed upon by the parties or the relevant court should be approached to determine same.

The Appellants approached the Gauteng Division of the High Court, Pretoria and brought an application for an order setting aside the Master’s findings and to order the Executor to remove the maintenance claim. In its judgment, the trial court said the spouse was entitled to reasonable maintenance, although the court could not determine the amount due to the lack of information. The Appellants appealed to the Full Court of Gauteng Division, Pretoria. The Full Court concluded that the spouse is entitled to reasonable maintenance and made an order setting aside the order of the trial court, and substituted it with an order the matter be remitted to the Master to determine the quantum of the maintenance payable.

The SCA found that both courts erred in their approach to the matter and that the evidence of the surviving spouse failed to address the factors listed in Section 3 of the Surviving Spouse Act. She did not testify that she could not provide for herself and did not provide any proof of expenditures. She did not prove that she was entitled to reasonable maintenance. The SCA ordered that the decision of the Master be set aside and that the objection against the L&D account be sustained. The Executor was ordered to amend the account and to remove the claim.

Raullene Marais
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