In South African law, the principle of freedom of testation applies. You are allowed to write your will and decide how your property will be passed on once you have passed away. As a general rule, you are allowed to leave your property to whoever you want. You are allowed to do this with almost absolute control. However, certain exceptions do apply to the principle of freedom of testation. When it comes to the deceased estate and maintenance claims, you can find one such exception. In this post we will look at how maintenance claims apply in the case of the deceased estate, specifically when no provision has actually been made in the will for maintenance.
The deceased estate and maintenance claims: My spouse’s claim to maintenance
Before 1990, and because of the principle of freedom of testation, it was not readily accepted that spouses had an inherent claim to maintenance against the deceased estate. What this meant is that your spouse could have only claimed support if s/he was nominated in your will to receive support.
In 1990, the Maintenance of Surviving Spouses Act changed things. This act states that, where the marriage is dissolved by death, a surviving spouse has a claim for maintenance against the deceased spouse’s estate until the surviving spouse’s death or remarriage. What can be claimed depends on the surviving spouse’s reasonable maintenance needs and whether the surviving spouse is not able to provide for those needs from his or her own means. For these provisions to apply, the surviving spouse must have been married to the deceased spouse at the time of death. This gives your spouse the right to claim support from your deceased estate, even if your will does not provide for it.
This maintenance claim ranks higher than all other claims against the deceased estate (excluding the debts owed by the estate to creditors, but including the heirs and legatees).
The deceased estate and maintenance claims: My child’s claim to maintenance
Parenthood automatically results in the obligation to support your child. This obligation arises from the moment of your child’s birth, regardless of whether s/he was born in or out of wedlock. It will continue until the child becomes self-supporting. This right to maintenance is not terminated by your death.
In the case of Carelse v Estate de Vries, the court held that minor children can claim for maintenance against the parent’s deceased estate even if there is no provision in the will expressly providing for maintenance. This is because of a parent’s duty to maintain his or her children.
Another case holds that a child who is no longer a minor (over the age of 18) also has the right to claim maintenance from the deceased parent’s estate if s/he can prove that s/he does require the support and can show the amount of support required.
This maintenance claim ranks on the same level as a spouse’s claim against the deceased estate.
Need help?
If you require assistance on a matter regarding the deceased estate and maintenance claims, please do not hesitate to contact us at [email protected].