There is a widespread belief in South Africa that a person has complete freedom when writing a will. Many believe they can leave their entire estate to a charity, a new partner, or a favourite relative while leaving a spouse or children with nothing.
While South African law respects freedom of testation (the right to leave your assets to whomever you choose), this freedom is not absolute.
In South Africa, you cannot simply disinherit a financially dependent spouse or child. The law places statutory and common law duties of support above the personal wishes expressed in a will. If a deceased person fails to provide for their dependents, certain legal claims may be brought against the deceased estate, ensuring that vulnerable family members are not left financially destitute.
Here is how maintenance claims work, can affect the distribution of an estate, and where they stand in the queue of estate creditors.
1. The Maintenance of Surviving Spouses Act: Protecting a Left-Behind Partner
Under common law, a spouse’s duty to support their partner ended upon death. If an individual chose to disinherit their husband or wife, the surviving partner had no legal recourse to demand financial support from the estate.
To correct this injustice, Parliament enacted the Maintenance of Surviving Spouses Act 27 of 1990.
How the Claim Works
If a marriage ends through death, and the surviving spouse has not been adequately provided for through the will, a trust, certain benefits received as a result of the death, or their own financial means, they have a statutory claim for maintenance against the deceased estate.
This claim lasts until the surviving spouse’s death or remarriage, but the amount is limited to the surviving spouse’s reasonable maintenance needs and the available estate assets.
What the Master and Executor Consider
When calculating the amount owed to a surviving spouse, the executor must investigate and determine the claim, subject to the applicable legal process and any dispute being determined by a court, and several key factors are considered:
- The survivor’s financial resources: Income, existing assets, and any benefit received from the marriage regime (such as an accrual claim or a share of a joint estate).
- The survivor’s reasonable lifestyle needs: Taking into account their age, health, earning capacity, and standard of living during the marriage.
- The size and value of the estate: Balancing what the estate can realistically afford alongside other competing claims.
- The standard of living during the marriage and the duration of the marriage.
This claim is not meant to enrich the surviving spouse or give them an equal share of the inheritance. It is strictly calculated to cover their reasonable financial maintenance needs.
2. Dependent Children: A Common Law Obligation That Survives Death
Unlike spouses, who rely on a specific written Act of Parliament, a parent’s duty to support their children is rooted in common law. This duty of support does not vanish when a parent dies.
Minor Children vs. Dependent Adult Children
A minor child may have a claim for maintenance from a deceased parent’s estate where the child is in need of support and the estate has sufficient assets, even if the will makes no provision for the child.
However, this protection is not restricted solely to young children:
- Dependent Adult Children: If an adult child is unable to support themselves due to a physical or mental disability, or remains dependent in the circumstances recognised by the law, they can also lodge a maintenance claim against the deceased parent’s estate.
- Equal Treatment of Children: The law makes no distinction between children born inside or outside of marriage, adopted children, or children from previous relationships. All hold an equal right to claim maintenance.
How Child Maintenance Claims Are Calculated
The claim is calculated by assessing the child’s reasonable financial needs until the child is expected to become self-supporting, while considering the child’s own resources, the surviving parent’s ability to contribute, and the assets available in the estate. The amount may be paid as a lump sum or in instalments, depending on the circumstances.
Where appropriate, the money may be managed for the child’s benefit through a testamentary trust or the Guardian’s Fund.
3. The Order of Preference: Who Gets Paid First?
When an estate is wound up, the executor does not simply hand out inheritances immediately. The executor must settle claims strictly in the following order:
Level 1: Funeral Expenses and Administration Costs
The estate must first pay reasonable funeral expenses and the costs of administering the estate. These may include undertaker fees, Master’s Office fees, executor’s fees, advertising costs, and other necessary administration expenses.
Level 2: Secured and Preferent Claims
The executor must then deal with secured and preferent claims in accordance with the applicable law. Secured creditors, such as a bank holding a mortgage bond over a property, may claim against the secured asset. Other creditors are paid according to the ranking that applies to their claims.
The estate must also account for outstanding taxes, including income tax, capital gains tax, and estate duty where applicable, before assets can be distributed to beneficiaries.
Level 3: Maintenance Claims (Spouses and Children)
The executor must identify and assess enforceable maintenance claims by a surviving spouse or dependent child before distributing assets to heirs and legatees. The amount available will depend on the claimant’s needs, the deceased’s legal duty of support, the estate’s assets, and the claims of other creditors.
These claims can reduce the inheritances available under the will because maintenance is treated as a legal obligation rather than a voluntary gift.
Level 4: Nominated Heirs and Legatees
After the estate’s administration expenses, valid debts, taxes and enforceable maintenance obligations have been dealt with, the remaining balance is distributed to the beneficiaries named in the will.
If the estate does not have enough assets to satisfy the maintenance claims and other valid claims, the beneficiaries may receive less than the deceased intended, or nothing at all.
Practical Lessons for Estate Planning
If you are drafting a will or navigating a complex family dynamic, understanding these legal safeguards is essential:
- You Cannot “Plan Around” Dependents: Trying to cut a child or dependent spouse out of a will may result in a valid claim against the estate, depending on the claimant’s circumstances and the applicable legal requirements.
- Use Life Insurance to Secure Liquidity: If you wish to leave specific assets (like a family business or a property) to a specific child while providing for another dependent, life insurance policies may provide liquidity, but a policy payable to a nominated beneficiary generally does not automatically form part of the deceased estate or automatically discharge a maintenance claim. The policy terms, beneficiary nomination, estate position and applicable legal obligations must be considered.
- Review Your Plan After Major Life Changes: Divorces, remarriages, the birth of new children, or the onset of a disability alter maintenance duties significantly. Ensure your estate plan aligns with your statutory obligations to prevent unexpected claims later.
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.