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Exceptions to Freedom of Inheritance: Maintenance Claims

By Dr Susandra van Wyk
In South African law, individuals have the freedom to leave their possessions to whomever they choose in a valid Will. However, disinherited surviving spouses and dependent children may still claim maintenance from the deceased estate, as can ex-spouses mentioned in a divorce settlement agreement. This blog delves deeper into these exceptions to the testator's freedom to choose their beneficiaries.

INTRODUCTION

South African law allows individuals the freedom to leave their possessions to whomever they wish in a valid Will. This stands in contrast to other countries that have so-called forced heir rules, which mandate that either the spouse, children, or both inherit a certain portion of the deceased's estate, irrespective of the contents of their Will.

However, under South African law, if the deceased disinherits or largely disinherits their surviving spouse and/or dependent child, they may still claim maintenance from the deceased estate. Additionally, if a divorce settlement agreement stipulates that the ex-spouse must receive maintenance and the deceased failed to make sufficient provision for this in their Will, the ex-spouse can also make a claim against the estate.

This blog explores these exceptions to the rule that the testator has complete freedom to choose their beneficiaries.

MINOR OR DEPENDENT CHILDREN

Parent’s duty of support during their lifetime

According to South African common law and section 18(2) of the Children’s Act 38 of 2005, parents are obligated to provide support to their children as primary caregivers. This duty is mutual between parents and children. The parent's responsibility to provide maintenance begins at the birth of the child and continues until the child turns 18 years old or becomes financially independent. Both parents' financial positions and means should be considered, and they are responsible for providing support to their children.

Duty of support after parent’s death by deceased estate

The duty to maintain a child continues even after the death of a parent (Carelse v Estate de Vries [1906] 25 SC 532; Glazer v Glazer NO 1963 [4] SA 694 [A] at 706 H-707 A). A child under the age of 18 can make a claim for maintenance against the deceased parent's estate. If there is already a maintenance order against the deceased parent, the amount of the order will indicate an ongoing obligation for support, and a properly formulated maintenance claim can be submitted.
A dependent child who is 18 years old or older can make a claim for the executor's consideration if they were financially dependent on the deceased parent at the time of the parent’s death and the child does not have the means or income to support their reasonable financial needs. The same rules apply as with a maintenance claim of a child under 18 years old.

There is no specific law governing a child's maintenance claim, unlike a surviving spouse who can claim maintenance under the Maintenance of Surviving Spouses Act 27 of 1990. Common law principles and court cases set the precedent for child maintenance claims.

Who must submit the claim?

If the child is a minor, their guardian may submit a maintenance claim on their behalf against the deceased parent’s estate. If the child is a legal adult and dependent, they can submit their claim to the executor of the deceased parent’s estate for consideration.

Factors that determine the claim

There are three factors that determine the claim:

Firstly, the claimant's inability to support themselves, indicating that the child needs maintenance support.

Secondly, the relationship between the claimant and the person from whom they are claiming support, such as the deceased parent who had the primary duty to support.

Thirdly, the available balance for distribution after paying off debts, as the estate can provide for maintenance.

Also, a maintenance order in terms of the Maintenance Act before the deceased parent’s death may only indicate the amount of the order and is not conclusive evidence of a proper maintenance claim. New circumstances may not have been considered when the order was made.

Executor’s duty to safeguard minor’s interests

It is not solely the guardian's responsibility to submit the child's maintenance claim if there is a minor's inheritance involved. The executor also has a duty to safeguard the minor's interests, regardless of any customary practices endorsed by the Master. The executor's responsibility extends to section 28(2) of the Constitution, which has a broad scope, as stated in section 9 of the Children's Act 38 of 2005, which places the child's best interests as a top priority in all matters related to their care, protection, and welfare of minor children.

Alternative to Estates Act maintenance

Submitting and reviewing a claim against the estate can be a lengthy process. In Du Toit v Thomas (635/15) [2016] ZASCA 94 (1 June 2016), the Appellate Division ruled that it would be beneficial for the minor if the executor used the faster remedy available under the Maintenance Act 99 of 1998 instead of the Administration of Estates Act 66 of 1965. Under the Maintenance Act, the minor can make a maintenance claim against the estate, which is a quicker solution than submitting a claim against the estate under the Estates Act.

Precedence over inheritances

A minor's maintenance claim takes precedence over any legacies or inheritances and will be assessed based on individual circumstances, including the standard of living the child had before the parent's death.

Living parent’s duty of support

The burden of maintenance should be shared between the estates of the deceased parent and the living parent. However, according to case law, a claim arises only if the living parent is unable to provide for the child.

Grandparent’s duty of support

In cases where parents are unable to provide support for their children, other relatives such as grandparents, while still alive, may be required to do so. However, the duty falls first on the closest relative before moving to more distant ones. But this is not extended to a deceased grandparent’s estate.

So let us first look at the two common law rules govern the legal obligation of grandparents to support their grandchildren. The first rule states that a grandparent only has a duty to support a grandchild if both parents are unable to provide support, and the alive grandparent is capable of doing so. However, the rule is unclear if the parents are unwilling or cannot support the child.

The rule that applies to a deceased estate is the second rule established in Barnard NO v Miller 1963 (4) SA 426 (C) that a grandparent's deceased estate is not required to provide support for their grandchild.

Then, in Phillipa Susan van Zyl NO v Getz (548/19) [2020] ZASCA 84, the appellant requested that the Supreme Court of Appeal (SCA) recognises a duty of support from a grandparent's deceased estate. However, the SCA declined to do so, citing deficiencies in the mother's case.

The relevant facts of the case were that both parents were alive, but the mother could not afford to maintain the child, and the father had moved to the United States without establishing his financial means. No serious efforts were made to locate the father or establish his financial situation. The court found that the mother's case was deficient on a factual level, and the appellant sought to impose a duty to support the grandchild on the grandparent's deceased estate where the parent could not be traced. The court determined that the father, who is primarily responsible for maintenance, may be able to provide financial support for the child. Therefore, developing a common-law rule was unnecessary, as the obligation for maintenance must only be transferred to another person after establishing the financial inability of the person from whom maintenance is sought.

The court also declined to develop the common law to allow a minor grandchild to claim from their grandparent's deceased estate as a general principle. This decision was made because such a rule had the potential to compete with the heirs of a deceased grandparent, as well as other claims for maintenance that may arise, such as those made by a surviving spouse or child of the deceased.

SURVIVING SPOUSE

General rule

If the deceased significantly excluded a surviving spouse from inheriting, the surviving spouse may be able to successfully submit a maintenance claim against the estate under section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) for the provision of their reasonable maintenance needs until death or remarriage.
The claimant must prove that they were in a legally binding relationship or marriage at the time of death (section 1) and that they are unable to provide for themselves through their own means and earnings (section 2[1]). This means that the claimant must fall within the Act's definition of a spouse. Court cases have expanded the meaning of a spouse, and in the recent constitutional case of Bwanye v The Master 2022 (4) BCLR 410 (CC), the court found that section 1 is unconstitutional to the extent that it excludes proven life partners in a permanent life partnership or relationship from the definition of "spouse."
Format of claim

In terms of section 2(3)(a) of MSSA, the proof of the claim and the executor's consideration of its acceptance or rejection fall within the provisions of the Administration of Estates Act 66 of 1965. Thus, sections 29, 30-33 of the Estates Act 66 of 1965 will mainly apply. As confirmed in court cases, the claimant is required to submit an affidavit with supporting documentation. The MSSA and the Estates Act do not require the submission of an actuarially formulated maintenance claim. However, in practice and in several court cases, an actuary's report has assisted in formulating the claim by taking into account inflation and life expectancy calculations.

According to section 2(1) of the MSSA, a surviving spouse's claim under section 3(a) is limited to the amount available for distribution to beneficiaries, meaning that the maintenance claim will be paid from the inheritances. The claimant must provide sufficient information with supporting documentation to prove that the claimed amount is in line with their reasonable maintenance needs. The executor will consider factors such as the claimant's existing and expected means and earning capacity, financial needs and obligations (ito section 3[b]), standard of living during the marriage, and age at the time of the deceased spouse's death (ito section 3[c]).

Preference order of claim

In accordance with section 2(3)(b) of the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA), after creditors have been paid, the maintenance claim will be paid, and whatever remains will go to the intestate or testate beneficiaries. If the maintenance claim of the surviving spouse and that of a dependent or minor child conflict with each other, the maintenance claims may, if necessary, be reduced proportionately according to section 2(3)(c) of the MSSA.

Type of settlement

In accordance with section 2(3)(d) of the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA), the executor of the estate has the power to enter into an agreement with the claimant and the heirs and legatees who have an interest in the agreement, including the creation of a trust. Under the agreement, the executor may transfer assets of the deceased estate, or rights in the assets, to the claimant or the trust, or impose an obligation on an heir or legatee, to settle the claim or part thereof.

EX-SPOUSES

As a general rule, an ex-spouse does not have the potential to make a maintenance claim against their deceased ex-spouse's estate. This is because the duty of support between spouses ends when a marriage is dissolved through divorce. However, there is an exception to this rule when there is a divorce order that requires spousal maintenance to be paid and specifically states that this maintenance order will bind the spouse's estate.

CONCLUSION

In conclusion, South African law provides you with the freedom to distribute your possessions as you see fit in your Will, but there are exceptions where the deceased estate can be liable for maintenance support to certain individuals who have an ongoing obligation for financial support. This includes minor and dependent children, as well as the surviving spouse/partner. Currently, grandchildren are not allowed to submit a maintenance claim against their deceased grandparent's estate. A divorced spouse's maintenance claim is limited by the provisions of the settlement agreement or divorce order.

If you disinherit your spouse, minor child, or dependent child who you have an obligation to support financially, they may submit a maintenance claim against your estate to cover their reasonable needs. This could reduce the inheritance of your other beneficiaries. To avoid such a claim, you can provide for their maintenance needs in your Will or by nominating them as beneficiaries of your life insurance policy.

It is important to carefully consider all possible outcomes when drafting your Will to ensure that your loved ones are taken care of, and your assets are distributed according to your wishes. It is recommended that you consult a legal representative for assistance in this matter.

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