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[2016] ZAGPPHC 246
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Robbetze v Gouws and Others (37115/2015) [2016] ZAGPPHC 246 (22 April 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
22/4/16
Case no. 37115/2015
Not reportable
Not of interest to
other judges
Revised
In the matter between:
M.J.
ROBBETZE Applicant
and
N.
GOUWS First
Respondent
N. GOUWS
N.O.
Second
Respondent
THE MASTER OF THE HIGH
COURT, PRETORIA Third
Respondent
JUDGMENT
RABIE, J
1.
The applicant applied
for a number of orders against the first and second respondents. The
first set of orders is aimed at compelling
the first respondent to
account to the applicant in respect of certain insurance policies, to
furnish the applicant with certain
documentation and information, and
to order the first respondent to debate the account with the
applicant. In the second set of
orders the applicant claims
maintenance and arrear maintenance in respect of her minor daughter
to which I shall refer to as Y.
2.
The applicant was the
second wife of Mr E.N. Robbetze, whom she divorced on 10 February
2005. It was from this marriage that Y was
born. The first respondent
is also a daughter of Mr Robbetze but from a marriage prior to his
marriage to the applicant. Mr Robbetze
(the deceased) passed away on
24 June 2014 and the first respondent was appointed as executrix of
his deceased estate. She was
cited in this application in her
personal capacity as first respondent and, in her capacity as
executrix, as second respondent.
3.
The claim for
statement and debatement of account relates to two Liberty Life
policies. According to the applicant Y is entitled
to half of the
proceeds of these policies and consequently she, as sole guardian and
remaining parent of Y, is entitled to be kept
informed in respect of
the policies and more particularly how Y's share is retained, managed
and controlled. According to the applicant
the duty of the first
respondent in this regard is both a fiduciary and a custodial duty.
According to the applicant Y's rights
in this regard emanated from
the terms of the will of the deceased.
4.
The claim for
maintenance was for payment in the minimum amount of R7 401,00 per
month and for arrear maintenance in the aforesaid
amount per month
with effect from 24 June 2014 to date. This claim was directed at the
second respondent, i.e., as executrix of
the deceased estate.
5.
The first and second
respondents opposed the application. For the sake of clarity I shall
only refer to her as "the respondent"
unless it is
necessary to differentiate between the two capacities in which she
was cited.
6.
I do not regard it
necessary to refer to all the issues raised by the respondent and
shall merely refer to the salient features
thereof. The respondent
explained that her father, the deceased, was killed in a motor
vehicle collision and as the cause of his
death was cited as
"unnatural", the problems experienced with the finalisation
of the estate were compounded. So, for
example, policies do not pay
out when the insurance companies are informed of such a death and
there is an insistence on additional
documents, information and
post-mortem reports. In order to assist her with the administration,
liquidation and distribution of
the estate of the deceased she gave
power of attorney to Mr W.F. Bouwer, a practising attorney who
specialises in such matters.
7.
It is clear from the
answering affidavit that the administration of the deceased estate is
being properly done, that it is up-to-date
and that everything is
accounted for. Mr Bouwer has been in constant communication with the
relevant insurance companies and has
exerted the required pressure to
obtain copies of the said policies in order to ascertain who the
beneficiaries are and to supply
information to such companies as and
when required by them.
8.
I shall first refer to
the two policies referred to by the applicant. The first is the
Liberty Lifestyle Protector Policy number
586 307 73 400. This policy
was taken out by the deceased in order to assure an income in case of
disability. As he passed away,
this policy is no longer of any
relevance as nothing will be paid out. No more needs to be said about
this policy.
9.
The second policy is
the Liberty Lifestyle Protector Policy number 586 305 901 00 which
was taken out by the deceased during February
2006. This policy seems
to be the main concern of the applicant as it is the only policy that
has to date paid out any money. This
policy assured the life of the
deceased. The nominated beneficiary of 100% of the proceeds of the
policy is the respondent. The
deceased never amended the policy and
the respondent remained the sole beneficiary of this policy until the
death of the deceased.
The total amount in respect of this policy was
R 2 577 279 .28 and was paid into the respondent's account.
10.
As beneficiary in
terms of the provisions of this policy, which was an insurance
contract between the deceased and Liberty Life
in the interest of the
respondent as the third party, the respondent was entitled to the
full proceeds thereof. The proceeds never
formed part of the deceased
estate. It was submitted on behalf of the applicant that from an
Estate Administration viewpoint, the
proceeds of this policy will not
be reflected in the Liquidation and Distribution account as part of
the deceased's estate. It,
however, needs to be reflected in the
Estate Duty Addendum for estate duty purposes. Therefore, the only
time it would have been
necessary to reflect the proceeds in the
estate account (as an asset), would have been if no beneficiary had
been nominated, which
was not the case. I agree with these
submissions. The respondent became fully entitled to the full
proceeds of the policy and as
it has been accepted by her, no one
else has any claim thereto.
11.
The will of the
deceased consists of only one paragraph. I shall quote the will
verbatim but point out that allowance has to be
made for the fact
that the deceased suffered from dyslexia. The relevant part reads as
follows:
"Hier by my laast
wil. Alie ander Testament Tot Niet Verklaar. Al my polise gaan na my
ouste dogter Nadia Gous <Robbetze>.
So dit in die polise is van
wie die beginstide is. Sy sal dit vir deel tussen haar en haar klien
sus Yolani Robbetze. Sy mag doen
wat sy will met haar deel nes sy
wil. Maar met haar klien sus se deel meot sy dit in n beleging sit
wat haar deur skool en inversietyd
sal sit en help om haarby te staan
met al haar benodigheede. Daar is ook n polis Vir Yolani wat haar sal
help met haar studies.
MY ardse bisitengs <Reorende> sal my
oudte Kind Nadia Gous dit erf en beslyt wat daarmee gebeer.
Geeken
Te Benonie
12.
It was submitted on
behalf of the applicant that in terms of this will Y became entitled
to 50% of the proceeds of the aforesaid
policy which had paid out.
However, as I have indicated above, the proceeds of the policy were
payable unconditionally to the respondent
and the respondent became
the owner thereof in terms of the provisions of the policy. The
proceeds never formed part of the estate
of the deceased and as such
he could not be prescriptive as to what the respondent should do with
the money paid to her.
13.
The respondent stated
that although she regarded the money as hers, she nevertheless
decided to assist her sister, Y, as was the
wish of the deceased as
expressed in his will. In her personal bookkeeping of the account in
which she had paid the proceeds, she
had divided the amount in two
and has kept proper books of account ever since.
14.
The respondent
explained that the deceased had paid for her tertiary education and
that he had made provision for Y's studies by
way of another policy
as mentioned in the will. From a reading of the will it seems clear
that the deceased would inherit all his
other policies but he wanted
her to assist Y in her needs through school and university. According
to the respondent this is exactly
what she had been doing since the
deceased passed away. Before I deal with this issue, however, it is
necessary to refer to the
policy mentioned in the will which was
intended to assist Y in her studies.
15.
The applicant failed
to refer to this policy. It is a Discovery Global Education Protector
policy and the beneficiary of this policy
is Y. The policy has been
paying certain benefits in respect of Y's tuition and maintenance.
The insurance company did not consult
and/or correspond with the
respondent in respect of this policy but has done so with the
applicant. The respondent ascertained
that this policy has been
paying and will pay for the actual education fees directly to the
school which Y is attending. This includes
her residential fees as
well as 10% of books purchased. All South African universities,
including universities of technology, are
included in this benefit.
16.
Apart from the
aforesaid the respondent had paid an amount of R3 100,00 per month
towards Y's maintenance as well as a number of
other expenses which
include her extramural activities. For this purpose she utilised the
aforesaid policy which had paid out and
which she had kept in a
separate money market account.
17.
The respondent has
referred to another policy which is not necessary to refer to. The
proceeds thereof were ceded by the deceased
to Nedbank as security
for a debt of the deceased. The balance would be paid into the estate
account once payment is made. As and
when information becomes
available in respect of the policies mentioned Mr Bouwer updates a
draft liquidation and distribution
account. The latest draft was
attached to the answering affidavit which, inter alia, shows the net
balance for distribution which
is, however, only an approximate
amount as final figures are still being awaited.
18.
Mention may also be
made to policies which are Retirement Annuities. The respondent and
Mr Bouwer have had particular difficulty
in finalising these issues.
The proceeds of these policies do not fall within the deceased estate
and are being dealt with in terms
of the provisions of section 37C of
the Pension Funds Act, 33 of 1943. The Boards of Trustees of the
insurance companies have to
decide, after comprehensively
ascertaining all relevant facts, on who the benefits in respect of
the retirement annuities, will
devolve. The Boards of Trustees take
all aspects into consideration in order to make well considered
comprehensive payouts to dependents
from the available funds. Despite
their best efforts, the respondent and Mr Bouwer have not yet been
able to ascertain the amounts
available in this regard.
19.
The applicant's claim
was based on the alleged fiduciary duty and custodial duty of the
respondent towards the applicant and Y.
As has been stated above, it
is clear that the sum insured by the aforesaid policy which had paid
out, never formed part of the
deceased estate. The deceased therefore
never had the right to dispose of the proceeds thereof in his will.
At best, he could merely
express a wish, as he had done. There was
therefore never a legal duty or obligation on the respondent to
disclose any information
in respect thereto to the applicant. The
fact that the respondent has altruistically decided to honour the
wishes of her deceased
father does not confer any rights on the
applicant or on Y nor did it resuIt in a fiduciary relationship
between them. The respondent
became the owner of the money paid to
her and she need not account to anyone in respect thereof. For these
reasons the applicant's
claim for the statement and abatement of
account and the delivery of documents, should be dismissed.
20.
I shall now refer to
the claim for maintenance which is against the second respondent as
executrix. The amount claimed in
the Notice of Motion is R 7
401.00 per month. Except
for stating that the first respondent has contributed R3 100,00 per
month to the maintenance of Y, not
an iota of evidence was presented
regarding expenses of, or, in respect of, Y.
21.
According to the
answering affidavit it does not seem that Y lacks anything in respect
of her maintenance. Firstly, the applicant
also has an obligation to
maintain Y. Secondly, as far as the deceased estate is concerned, Y
benefits from the study policy referred
to above and over and above
that, the respondent pays the amount of R3 100,00 per month to the
applicant in respect of Y's maintenance
and makes further payments of
her own volition in respect of Y's extramural activities, tuition and
other aspects as and when needed.
She does so as it was her father's
wish and because at present the estate is in a process of flux and
uncertainty and nowhere near
finalisation. There is consequently
currently no money available in the estate except for an amount of
R104 080,51 net which, according
to the provisional draft liquidation
and distribution account is available for distribution between Y and
the respondent. Y would
further benefit from the retirement annuities
once the respective Boards of Trustees have resolved as to what
should be done with
the proceeds of these policies. Consequently,
apart from failing to make out a case for the need to have the amount
claimed paid
in respect of Y's maintenance, it would seem that the
applicant's claim is in any event flawed and, at the very least,
premature.
22.
A dependent's claim
for support from the estate of a deceased, is based on need and, as
stated above, no facts were presented by
the applicant to lay a
foundation for such a claim. The applicant also failed to show that
she had submitted a properly substantiated
claim for interim
maintenance with the second respondent as executrix.
23.
Section 26 (1A) of
the Administration of Estates Act, Act 66 of 1965, expressly
stipulates that an executor may, before an account
has lain open for
inspection (after finalisation and advertisement) in terms of section
35 (4) of that Act, with the consent of
the Master, release such
amount of money and such property out of the estate as, in the
executor's opinion are sufficient to provide
for the subsistence of
the deceased's family or household. This would include a claim for
interim maintenance.
24.
The applicant failed
to follow this route and by applying to this court in the way that
she did, by claiming maintenance as of right,
she disregarded the
discretionary powers of the Master and the executrix. By doing so she
also attempts to avoid the provisions
of section 32 which deals with
disputed claims and has failed to disclose the provisions of the
Education Policy and the benefits
derived therefrom as well as her
own income and expenses and the needs of Y. These are all aspects
that need to be considered by
the Master and an Executrix in order to
consider interim maintenance payments. Whether it be for maintenance
or earlier maintenance,
the applicant should have submitted a proper,
comprehensive and substantiated claim with the second respondent
which comprehensively
deals with all expenses, amounts received and
other such relevant matter. This she failed to do and the second
respondent, as executrix,
was not entitled to pay out any monies
without the consent and approval of the Master of this Court.
Consequently, the applicant's
claim for maintenance and arrear
maintenance should also be dismissed.
25.
Having regard to all
the aforesaid, there is no reason why the costs of this application
should not follow the event.
26.
In the result, the
following order is made:
1.
The application is dismissed with costs.
____________________
C.P. RABIE
JUDGE OF THE HIGH
COURT