The South African law upholds the principle of freedom of testation. Therefore people have control over the transference or delegation of their estates, they have complete control to make almost any bequests.
This means you will have complete control when writing your will and deciding how to divide and pass-on your property after you pass away.
The freedom of testation has always been protected by our court of law so that an individual has no claim against a deceased estate where the deceased left a valid will, and where that individual is not included as a beneficiary in terms of said will.
However, there are some exceptions, such as the deceased estate being held liable for support (maintenance) to a non-heir (someone not mentioned in the will), has also been long accepted as part of South African law.
It has long been decided by South African law that minor children can claim for maintenance against a parent’s deceased estate in the absence of express provision to that effect.
This is due to the principle that a parent is responsible to maintain his/ her children, even after death.
This right to maintenance applies until the child becomes self-supporting, regardless of whether he/she was born in or out of wedlock, or was adopted by the deceased and is not terminated (by the parents death).
It is important to note that any monetary inheritance of a minor child will, unless specifically directed otherwise, be paid into the Guardian’s Fund of the Master of the High Court.
A claim for maintenance for a child is lodged by giving notice in writing to the Master and the executor of the estate of the child’s need for maintenance.
When a child who is no longer a minor claims from a parent’s deceased estate, it is imperative that he/she is able to prove that:
With the exception of debts owed by the estate to creditors, the claim for a child’s maintenance is ranked above all other claims against the deceased estate, including those of heirs and legatees.
A guardians fund is created by the government to hold and administer the monies paid to the Master of the High Court on behalf of persons such as minors, missing or absent persons and people who are unable to manage their own affairs.
Maintenance can be claimed by the guardian or executor (person who looks after the beneficiary) by an application which is supported by quotations and accounts (documentation and proof) .
Payments may then be made directly to service providers such as schools, universities and bookstores.
A minor can claim the money, as well as accrued interest, upon reaching the age of majority. However, a testator can stipulate another age when a beneficiary is entitled to the invested capital.
With the introduction of the Maintenance of Surviving Spouses Act, 27 of 1990, surviving spouses have, where their marriage was dissolved by death, a claim for maintenance against the estate of their deceased spouses until either death or remarriage of the surviving spouse.
The maintenance claim is only allowed for the provision of that surviving spouse:
The surviving spouse had to have been married to the deceased at the time of his/her death in order for the Act’s provisions to be applicable.
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:
Note: A spouse can bind his/her estate to pay maintenance after death, that is, by declaring in his/her will that their estate must pay maintenance to his current spouse and/or ex-spouse.
Typically, where the parties have divorced, such a provision is included in the divorce settlement agreement. This means that in a settlement agreement, the parties can agree that their obligations as contained therein, including that of maintenance, is binding on their respective deceased dates.
For expert legal advice contact Van Deventer & Van Deventer Incorporated.
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