Newsletter 7

The surviving spouse and the “right” to maintenance from the deceased estate.

Stellentrust News | Edition 7

Stellentrust News | Edition 7

Mr. Wandering-eye

- a tale of indiscretion and divorce

Mr. Wandering-eye was happily married for 25 years, but true to his name committed an indiscretion that culminated in a divorce. In terms of the settlement agreement he must pay maintenance to his ex in the amount of R35 000 per month. Due the acrimonious nature of the divorce Mr. Wandering-eye immediately changed his will and left the whole of his estate to his only daughter. His single status continued for 3 years after which he married his 40-year-old secretary, Miss. Starry-eye, out of community of property and without the accrual system. He thought that this marital regime will after all protect his daughter’s inheritance and will ensure that Miss. Starry-eye does not turn into a gold-digger.  They lived happily for 5 years until Mr. Wandering-eye, now 65 years old, amorously over-exerted himself one night and died of a massive heart attack.

His executors, upon reading the deceased’s will, found that his daughter is still his only heir. The executor informs the daughter accordingly and tells her that it looks like a very straightforward estate to administer, until they received a claim from the attorneys representing his ex-wife who allege that the deceased’s obligation for maintenance does not end with his death. The attorney’s further states that their client has a life expectancy of 20 years and therefor submitted a claim against the estate for R11 000 000. To make matters worse, the will never made provision for his current wife who, on the insistence of the deceased, left her secretarial job after the marriage. Her lawyers argue that after 5 years out of the job market she is also in need of spousal support. She therefor also filed a R4 000 00 claim against the estate.

It is trite law that the ex-wife has a claim against the estate, however, does the surviving spouse have an automatic right to maintenance from the deceased estate?

In Van Rooyen Friedrich & others v Louw Smit NO & others 1028/2015 [2017] ZASCA 19 (23 March 2017) this issue was argued. The background facts are that, on 26 April 2003, Mr. Friedrich entered into a second marriage with Susana Friedrich, out of community of property without accrual, and their marriage still subsisted at the time of his death in September 2006, a mere 3 years later. In his will, he left the whole of his estate to his three adult children from his previous marriage. The value of his estate was approximately R7 000 000.

Mrs Friedrich probably felt aggrieved that she did not inherit anything or that no provision was made for her maintenance. She appointed a Quindiem Consulting, actuaries, to compile a report to set out what it will cost her to maintain herself in the foreseeable future. In November 2006 Mrs Friedrich filed a claim with the Executor, Stabilitas Board of Executors, against the deceased’s estate in terms of s 2 of Maintenance of Surviving Spouses Act 27 of 1990 (the Surviving Spouses Act) in the amount of R8 454 760, which she subsequently reduced to R 4 468 519. 24. Presumably based on this report the executor accepted this claim and it was included in their Liquidation and Distribution Account as submitted to the Master of the High Court, Pretoria.

The appellants, through their attorneys, lodged an objection to the L and D account with the Master of the High Court, Pretoria stating that Mrs Friedrich could only claim reasonable maintenance if she could not support herself through her own income and means.

In the trial court, the judge, despite the finding that there was no evidence upon which the court could find ‘reasonable maintenance which the second defendant [Mrs Friedrich] would be entitled to’ it surprisingly concluded:

‘I find that the second defendant [Mrs Friedrich] is entitled to reasonable maintenance as set out in Act 27 of 1990, although I cannot make a determination as to the amount due to the paucity of information before me.’

According to Adv. Carstens, this meant that, the trail court, even in the absence of evidence that she needs reasonable maintenance, still confirmed that she has such a claim. This sounds like the court is saying that the surviving spouse has a claim merely by reason of being married to the deceased. The only matter that is left is that she needs to prove the quantum.

The 3 children appealed this and the appeal court found as follows:

  1. In terms of our common law, a surviving spouse has no claim against the estate of the deceased spouse merely by reason of the marriage. (See Botha v Botha 2009 (3) SA 89 (W) para 32.)
  2. Section 2 of the Surviving Spouses Act provides that if a marriage is dissolved by death, the surviving spouse shall have a claim against the deceased’s estate for the provision of reasonable maintenance until death or remarriage, to the extent that the surviving spouse is not able to provide for his or her own maintenance, from his or her own means and earnings. The claim should be lodged with the executor of the Estate and it is required to be dealt with in terms of the Estates Act. (See also s 2(3)(a) of the Surviving Spouses Act.)
  3. Section 3 of the Surviving Spouses Act provides:
    In the determination of the reasonable needs of the survivor the following factors shall be taken into account in addition to any other factor which should be taken into account:
    1. The amount in the estate of the deceased spouse available for distribution to heirs and legatees;
    2. the existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
    3. the standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouse.’

The court further found that the provisions of ss 2 and 3 of the Surviving Spouses Act specifically provide that the surviving spouse is only entitled to reasonable maintenance, and that the estate of the deceased is liable only to the extent to which the surviving spouse is not able to provide for it from his or her own means and earnings. Reasonable maintenance must exclude extravagant demands of maintenance and a surviving spouse who cannot show that he or she is not able to maintain him or herself is not eligible for maintenance from the deceased’s estate.

In order to meet the threshold, set by the Surviving Spouses Act, Mrs Friedrich was required to show that she was in need of reasonable maintenance and was unable to maintain herself.

Mrs Friedrich’s evidence failed to address the factors listed in ss 3(b) and (c) of the Surviving Spouses Act. She did not testify that she could not make ends meet and was therefore in need of maintenance. She did not provide any documentary proof to show her expenditure, accounts and bank records. The trial court was kept in the dark about her lifestyle and standard of living during the subsistence of the marriage and after the death of the deceased.

Mrs Friedrich’s reasons why she was unemployed were unconvincing. In trying to explain why she could not resume her career as an estate agent, she stated that it was no longer safe to do so because she was hijacked in the past whilst she was working in that capacity. She has not worked since the deceased’s death and she stated that she applied for approximately 10-12 jobs. Incredibly, however, not a single one of the job applications was in writing. According to her, she was unemployable because of her age, however, no documentary evidence was provided to show that she had indeed applied for employment and was turned down. The report compiled on her behalf by Quindiem Consulting was, as found by the trial court, inadmissible hearsay evidence.

For all those reasons, Mrs Friedrich did not prove that she was entitled to reasonable maintenance.

According to Adv. Carstens of Stellentrust, “it is evident to us that many wills do not cater adequately for the reasonable maintenance of the surviving spouse.   People either do not attend to the amendment of their wills after entering a new or second marriage or for some reason did not consider the possibility that the surviving spouse might need financial support after their death.  It is also very important to remember that you, or your estate after your death, will remain liable for the payment of maintenance in terms of the divorce settlement.

There are various ways of addressing this in your will and in so doing you will ensure that the terms of your will can be properly executed by your executor. If you want to review you will or are not sure whether you have catered for such maintenance, please feel free to contact us at  or contact our CEO (Nico Botha) at .