Deceased Estate – The rights of children to claim

05 July 2018 ,  Theresa Tannous 11362
John passed away and left his entire estate to his spouse, Sue.  Sue is Johnny's stepmother and Johnny, who is John's son, is currently studying to become a carpenter and is 19 years of age.

The South African law recognises the principle of freedom of testation.  This means that John could record in his will how he prefers his estate to devolve upon his heir/s after his death.  So, unless Johnny was included as a beneficiary, heir and/or legatee in terms of his late father's will, he is not entitled to benefit from the will.

That being said and subject to certain conditions, a child may claim maintenance from the estate of a deceased, where the deceased has failed to make provision for maintenance needs of his children in his/her will.

In principle, the obligation of a parent to support a child can only be terminated by the child's death and not by the parent's death.

"The duty of a parent to support a child is a common law duty that arises inevitably on the birth of a child (regardless of whether the child is born in or out of wedlock and includes adopted children) and continues until the child becomes self-supporting"* (and not necessarily when reaching the age of majority).  Parents owe a duty of support to a child according to their respective means and this duty continues even after the death of one of the parents.  A child can therefore lodge a claim for maintenance against his deceased parent's estate."

It is important to note that any monetary inheritance for a minor child, unless directed otherwise, must be paid into the Guardian's Fund of the Master of the High Court.

However, in cases where a child who is no longer a minor (i.e. above the age of 18 years), wishes to institute a claim against his parent's deceased estate, he will have to prove that he in fact requires support and the amount of support claimed.  In other words Johnny will have to request payment for the balance of his carpentry studies supported by invoices and proof of accommodation and related expenses.

"With the exception of debts owed by the estate to creditors, a child's claim for maintenance ranks above all other claims against the estate of his deceased parent, including claims of heirs and legatees."* Therefor Johnny's claim will take preference above the inheritance to his stepmother Sue (assuming that Sue is self-sufficient).  If Sue was not financially secured and the residue of the estate after deducting Johnny's maintenance claim is not enough to sustain Sue, she could also institute a reasonable maintenance claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990 to provide for her basic needs until she dies or remarries.  If Johnny and Sue's claims compete with each other, those claims shall, if necessary, be reduced by the executor proportionately. "Should a maintenance order be in place at the time of a parent's death (for instance due to a divorce settlement agreement), the executor of the deceased estate will have to include the order as it will be binding on the deceased's estate after their death."*

Parental death has a great impact on the maintenance of a child.  We therefore urge our readers to contact our fiduciary specialists in our Estate Planning Department to ensure that your planning is properly done and we invite you to contact our offices for additional information in this regard.


(Sources: Administration of Estates Act, 66 of 1965 and *Momentum Legal Update, 9 of 2015 – By Natasha Marhye)