Deceased estate – Right to claim maintenance

Provided by Smith Tabata Buchanan Boyes

Topics Family Law | Wills, Estates & Trusts

12 Dec 2011

South African law upholds the principle of freedom of testation. This means that people have control over the devolution of their estates in that they can make almost any bequests. But what happens when the testator forgot to make provision in his will for a child or a spouse’s maintenance after the testator’s death?

Freedom to draft a will

The freedom of testation has always been protected by our law and the courts so that a person has no claim against a deceased estate where the deceased left a valid will and where that person is not included as a beneficiary in terms of that will. That being said, the concept of a deceased estate being held liable in certain circumstances for support (maintenance) to a non-heir (i.e. someone not mentioned in the will), has also long been accepted as part of South African law.

Claims by children of the deceased

In the 1906 judgment of Carelse v Estate de Vries it was decided that minor children can claim for maintenance against a parent’s deceased estate in the absence of an express provision to that effect, because of the principle that a parent is responsible to maintain his or her children. Similarly, it has been held by the courts that a child over the age of 18 (this was at the time when the age of majority was 21 years) may also claim maintenance from a parent’s deceased estate.

However, where a child who is no longer a minor claims from his parent’s deceased estate, it is incumbent upon him or her to prove:

firstly, that he or she does in fact require support; and
secondly, what the amount of his or her support requirement is.

With the exception of the debts owed by the estate to creditors, the claim for a child’s maintenance ranks preferent to all other claims against the deceased estate, including those of heirs and legatees.

Claims by spouses

Before 1990, the right of spouses to claim support (maintenance) from a deceased estate was, however, not as readily accepted because of the principle of freedom of testation. As such, a surviving spouse had no inherent claim against the deceased’s estate unless he or she was nominated a beneficiary in the will.

This changed with the introduction of the Maintenance of Surviving Spouses Act, 27 of 1990 (‘the Act’).

In terms of this Act surviving spouses have, where their marriage was dissolved by death, a claim for maintenance against the estate of their deceased spouses until either the death or remarriage of that surviving spouse. The maintenance claim is however only allowed for the provision of that surviving spouse’s:

reasonable maintenance needs; and
so far as he or she is not able to provide therefor from his/her own means and earnings
Such a claim ranks in the same order of preference as that of a child.

Surviving spouse had to be married to deceased

In order for the Act’s provisions to be applicable, one must be married to your spouse at the time of death. In the recent case of Kruger v Goss (2009), it was determined that an ex-spouse does not have a claim for maintenance against the deceased estate of her ex-husband. The Court held that the duty of support that spouses owe each other, and consequently the liability for maintenance, are incidents of their matrimonial relationship.

Termination by death brings that duty to an end. To allow an ex-spouse to bring a claim under the Act may diminish or exclude:

the maintenance claims of children;
the rights of beneficiaries; and
claims of the (deceased’s current) surviving spouse.

Cautionary Note

A spouse can bind his or her estate to pay maintenance after death, that is, by declaring in his or her will that his estate must pay maintenance to his current spouse and/or an ex-spouse. Typically, where parties divorce, such a provision is included in the divorce order and the settlement agreement pursuant thereto. (i.e., in a settlement agreement, the parties can agree that their obligations as contained therein, including that of maintenance, shall be binding on their respective deceased estates.)

If you require any assistance in this regard, please do not hesitate to contact Nicole Stevens ([email protected]) of our family law department. (In 2005 the age of majority was changed from 21 to 18)

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)