The first crucial step is to seek legal advice from an attorney specializing in deceased estates and maintenance claims, like Aucamp Attorneys.  We can assess your eligibility and guide you through the process.  Generally, the process involves:

  • Consultation and Assessment: Discussing your situation with your attorney.
  • Gathering Evidence:  Collecting documents to prove your relationship to the deceased, your financial needs, and the estate's details.
  • Lodging a Claim:  Formally submitting a written claim to the executor of the deceased estate and the Master of the High Court.
  • Negotiation and Settlement:  Attempting to reach a settlement agreement with the executor.
  • Court Application (if necessary): If a settlement cannot be reached, your attorney will assist you in bringing a court application to enforce your claim.

There's no fixed amount. The amount of maintenance awarded will depend on your "reasonable maintenance needs" as assessed by the court or agreed upon in settlement, and the available assets in the deceased estate. The aim is to provide sufficient support, not to deplete the entire estate or provide excessive funds.

Yes, there are time limits, although they are less strict than some other types of claims against deceased estates.  It is generally advisable to lodge your claim as soon as possible after the deceased's death and the estate is reported.  While the Prescription Act might have a bearing, the courts are often lenient with maintenance claims, especially for children, recognizing the importance of their ongoing support. However, do not delay! Consult with an attorney promptly to avoid any potential issues with time limitations.

"Reasonable maintenance needs" is not about luxury, but about ensuring you have sufficient funds to cover your essential living expenses.  The court will consider various factors to determine what is reasonable in your situation, including:

  • Your current and future income and earning capacity.
  • Your financial needs and obligations.
  • The size and nature of the deceased estate.
  • The standard of living you enjoyed during the marriage or while dependent on the deceased.
  • Your age and health.
     

A maintenance claim against a deceased estate is a legal right for certain dependents (primarily children and surviving spouses) to claim financial support from the assets of a deceased person's estate. This claim ensures that if the deceased was legally obligated to support you financially, this obligation doesn't automatically end with their death, especially if their will doesn't adequately provide for you.  It's about ensuring your essential needs are met.

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Maintenance Claims on Deceased Estates

South African law respects a person's right to decide how their assets are distributed after death – this is known as "freedom of testation."  Ideally, your loved one's will clearly outlines their wishes.  However, sometimes, wills don't adequately provide for those who were dependent on the deceased.  At Aucamp Attorneys, we understand that this can create significant financial hardship for surviving family members.

What are Maintenance Claims on Deceased Estates? 

In South African law, while individuals generally have the freedom to decide how their assets are distributed after their death (known as "freedom of testation"), there are important exceptions to protect vulnerable dependents. Maintenance claims on deceased estates are a crucial legal mechanism that ensures that the financial responsibilities of a deceased person towards certain dependents are not extinguished by death.

Introduction

While wills are generally upheld, South African law recognizes important exceptions, particularly concerning maintenance.  If you were financially dependent on a deceased person, you may have a legally enforceable claim for maintenance against their estate, even if the will doesn't explicitly provide for you.

This page explains your rights as a surviving spouse or child to claim maintenance from a deceased estate.  We'll clarify who can claim, what you need to prove, and how Aucamp Attorneys can guide you through this complex process, ensuring your financial security and peace of mind during a difficult time.

Child Maintenance Claims: Securing Your Child's Future

A parent's duty to financially support their child is a fundamental principle in South African law.  This duty doesn't end with death.  Whether the child is a minor or an adult still requiring support, they may have a valid claim for maintenance against their deceased parent's estate.

Key Points about Child Maintenance Claims

  • Continuous Duty The obligation to maintain a child begins at birth and continues until the child becomes self-supporting. This applies regardless of whether the child was born in or out of wedlock, or was adopted.
  • Claims for Adult Children Even children over 18 can claim maintenance. However, adult children must demonstrate they are genuinely in need of support and prove the extent of their financial needs.
  • Priority Claim A child's maintenance claim is given significant priority. It ranks above almost all other claims against the estate, including those of heirs (beneficiaries named in the will) and legatees (those receiving specific gifts in the will). Only debts owed to creditors take precedence.
  • Existing Maintenance Orders If a court order for maintenance was in place before the parent's death, this order remains binding on the deceased estate.
  • Guardian's Fund Any inheritance due to a minor child is typically paid into the Guardian's Fund, administered by the Master of the High Court, for safekeeping until the child reaches majority (or another age specified in the will).
  • How to Claim To lodge a claim, written notice must be given to both the Master of the High Court and the executor of the deceased estate, outlining the child's need for maintenance.

Spousal Maintenance Claims: Protecting Surviving Spouses

Before 1990, surviving spouses in South Africa had limited rights to claim maintenance if they were not provided for in a will. The Maintenance of Surviving Spouses Act changed this, recognizing the reciprocal duty of support spouses owe each other.

This Act gives surviving spouses the right to claim maintenance from the deceased spouse's estate, providing crucial financial protection during widowhood.

Key Points about Spousal Maintenance Claims

  • The Maintenance of Surviving Spouses Act This Act grants a surviving spouse a statutory right to claim maintenance.
  • Reasonable Maintenance Needs A surviving spouse can claim for their reasonable maintenance needs, but only to the extent they cannot meet these needs from their own income and means.
  • Marriage Dissolved by Death The Act applies specifically when a marriage is dissolved by death. Ex-spouses generally cannot claim maintenance from a former spouse's estate, unless a divorce settlement agreement specifies otherwise.
  • Duration of Claim Spousal maintenance typically continues until the surviving spouse's death or remarriage.
  • Equal Priority to Child Claims A surviving spouse's maintenance claim has the same high priority as a child's maintenance claim. If both spouses and children lodge claims, and the estate is insufficient, both claims may be reduced proportionally.
  • Factors Determining "Reasonable Needs" The court will consider various factors when assessing reasonable maintenance needs, including:
    • The assets available in the deceased estate.
    • The surviving spouse's current and future income, earning capacity, financial needs, and obligations.
    • The standard of living during the marriage.
    • The surviving spouse's age at the time of death.
  • Same-Sex Life Partnerships The right to claim maintenance extends to surviving partners in permanent same-sex life partnerships.

Ex-Spouses and Contractual Obligations

While ex-spouses generally cannot claim under the Maintenance of Surviving Spouses Act, it's crucial to note that:

  • Divorce Settlements If a divorce settlement agreement specifically states that maintenance obligations will be binding on the deceased's estate, then an ex-spouse can enforce this agreement against the estate.
  • Will Provisions A deceased person can choose to include provisions in their will to provide maintenance for a current or former spouse.

How Aucamp Attorneys Can Assist You

Navigating maintenance claims against deceased estates can be complex and emotionally challenging.  At Aucamp Attorneys, we offer compassionate and expert legal guidance to

  • Assess your potential claim We'll carefully analyze your circumstances to determine the strength and viability of your maintenance claim.
  • Gather necessary documentation and evidence We'll help you compile the information needed to support your claim effectively.
  • Prepare and lodge your claim We'll ensure all legal procedures are followed correctly and deadlines are met.
  • Negotiate with the executor and other parties We will advocate strongly for your rights to reach a fair and equitable settlement.
  • Represent you in court If necessary, we will skillfully represent you in court proceedings to protect your interests.

Don't face financial uncertainty alone.  If you believe you are entitled to maintenance from a deceased estate, contact Aucamp Attorneys today for a confidential consultation. Let us help you secure your future and protect your loved ones.