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[2024] ZAFSHC 154
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Maree v Master of the Free State High Court Bloemfontein and Others (3457/2023) [2024] ZAFSHC 154 (17 May 2024)
FLYNOTES:
WILLS AND ESTATES – Habitatio –
Will
and ante-nuptial contract
–
Deceased
undertook to cede to applicant right of habitatio – Master
upheld respondent’s objection to claim –
Grounds of
respondent's objections were misplaced – Ought not to have
upheld such objections – Master's reasons
do not reflect a
careful examination of legal position relating to right of
habitatio – Decision set aside –
Objections dismissed
–
Administration of Estates Act 66 of 1965
,
s 35(10).
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION
,
BLOEMFONTEIN
Case
Number 3457/2023
In
the matter of:
ELIZABETH
MARGARETHA MAREE
Applicant
and
THE
MASTER OF THE FREE STATE HIGH
First
Respondent
COURT
BLOEMFONTEIN
MAGIEL
DAVID MAREE
Second
Respondent
WILLEM
LODEWYK SEYFFERT N.O.
Third
Respondent
CORAM:
NAIDOO, J
HEARD
ON:
15 FEBRUARY 2024
DELIVERED
ON:
17 MAY 2024
JUDGMENT
[1]
This matter arises
from the administration of the deceased estate of the late Leon
Pieter Maree (the deceased), to whom the applicant
was married during
his lifetime. The deceased died on 7 October 2014, and the third
respondent (the Executor)), was appointed by
the first respondent
(the Master) as the executor of the deceased estate. The applicant
brings this application in terms of section
35(10) of the
Administration of Estates Act 66 of 1965 (the Estates Act), for the
setting aside in terms of section 35(10) of the
Estates Act,
alternatively, the review and setting aside of the Master's decision
dated 12 May 2023. Adv CD Pienaar represented
the applicant and Adv R
Van Der Merwe represented the second respondent. The Master and the
Executor played no part in these proceedings.
[2]
The applicant seeks
the following relief:
2.1
Condonation be
granted to the applicant for non-compliance with the time period
prescribed in
section 35(10)
of the
Administration of Estates Act 66
of 1965
and that the time period prescribed in terms of
section
35(10)
be extended until the date of the institution of this
application.
2.2
The decision of the
first respondent, dated 12 May 2023, to uphold the second
respondent's objection against the first and final
liquidation and
distribution account dated 5 July 2022 in respect of the applicant's
claim for
habitation
be set
aside in terms of section 35(10) of the Estates Act, alternatively be
reviewed and set aside.
2.3
The first
respondent's decision be substituted with a decision in terms of
which the second respondent's
objection against the
first and
final
liquidation and
distribution
account dated 5 July 2022 be dismissed.
2.4
The third respondent
be directed to amend the first and final liquidation
and
distribution
account dated
5
July 2022
to
include and reflect
the applicant's claim in respect of the applicant's
habitatio
in the
amount of R1 113 481.50 as a claim for habitation in terms of clause
5.2 of the last will of the late Leon Pieter Maree,
read with clause
5 of the antenuptial contract, registered on 27 November 1997 under
number H1751/1997.
2.5
The
costs
of
this application be
paid from the
estate of
the
late
Leon Pieter Maree,
alternatively if the application is opposed by any of the
respondents,
such
respondents be ordered to pay the costs of this application.
With
regard to condonation, the second respondent did not oppose that
relief, and condonation as sought in para 2.1 above was granted.
[3]
As indicated, the
applicant was married to the deceased, such marriage having subsisted
for approximately seventeen years. The applicant
and deceased entered
into an Ante-Nuptial Contract, with exclusion of the accrual system,
prior to their marriage in 2017. The
clause
which
is
relevant to
this
matter is
clause
5, in
terms
of which the deceased
undertook to cede to the applicant the right of
habitatio
in respect
of
their
communal home, upon their becoming divorced or upon his death. In
clause 5.2 of his last Will, the deceased gave effect to
clause 5 of
the ante-nuptial contract by bequeathing to the applicant the right
of
habitatio
in respect
of the communal home at the farm Diepwater, which is situated on the
outskirts of Bloemfontein
.
[4]
After the applicant
accepted the bequest, the Executor (third respondent), advised her
that the farm had to be sold to facilitate
the
due and
proper administration
of the
deceased
estate. She
was
required to sign a consent for the sale of the farm, free of the
right of
habitatio.
She
submitted a claim to the Executor for the value of the right of
habitatio,
in the
amount of R1 113 481.50, which was accepted by the Executor on 9
November 2017. She signed the consent for the sale only
after her
claim in respect of the
habitatio
was
accepted by the Executor. The latter thereafter included the
applicant's claim in respect of the
habitatio
and her
claim for spousal maintenance of R3 445 862.72, in terms of the
Maintenance of Surviving Spouses Act 27 of 1990 (the MSSA),
in the
First and Final Liquidation and Distribution Account (the L&D
account), which he submitted to the Master and which lay
open for
inspection in terms of the Estates Act
[5]
The second
respondent,
who
is the nephew of the deceased and a beneficiary in the deceased
estate, objected to the applicant's claim for
habitatio
and
maintenance as reflected in the L&D account. The Master upheld
the second respondent's objection and directed the Executor
to amend
the L&D account in respect of the
habitatio
claim. The
dispute between the parties is whether the Master upheld the
objection to the
habitatio
claim
only, as contended by
the
applicant, or the
whole
objection in respect of
the
habitatio
claim and
the
claim for
maintenance, as
contended
by the respondent.
I
will deal further with this later.
[6]
Clause 5 of the
ante-nuptial contract reads as follows:
"Dat
voormelde LEON PIETER MAREE onderneem verder om te sedeer aan
voormelde ELIZABETH MARGARETHA JACOBS die reg van Habitatio
van die
gemeenskaplike woning wat hulle mag okkupeer op die tydstip van
egskeiding of op die tydstip van dood van voormelde LEON
PIETER
MAREE. Hierdie reg van Habitatio slegs sal
geld tot die dood of
hertrou van voormelde ELIZABETH MARGARETHA JACOBS wat ookal eerste
mag plaasvind"
.
Loosely
translated it reads:
That
the aforementioned Leon Pieter Maree undertakes to cede to the
aforementioned Elizabeth Margaretha Jacobs the right of Habitatio
to
the communal home which they may occupy at the time of divorce or at
the time of the death of the aforementioned LEON PIETER
MAREE. This
right of Habitatio will be valid only up to the death or remarriage
of the said ELIZABETH MARGARETHA JACOBS, whichever
shall occur first.
[7]
The deceased
confirmed,
in his Will, the
provisions
of
clause 5 of the ante-nuptial contract, and stipulated certain
conditions upon which the applicant may exercise the right of
habitatio.
The
relevant clauses
of the Will are as
follows:
"5.2
Ek bevestig dat in
terme van die Huweliksvoorwaarde kontrak aangegaan tussen ek en my
eggenote, ek aan haar 'n reg van habitatio
van ans gemeenskaplike
woning verleen het en is dit ook my wens dat sy van hierdie reg
gebruik sal maak onderworpe aan die volgende:
5.2.1
Haar reg van
habitatio sal beteken dat sy die gebruik sal he van ons
gemeenskaplike woning met motorhuise te "Diepwater",
dog
sal sy nie geregtig wees om enige huurders in te neem of 'n gratis
bewoningsreg aan derdepartye toe te ken nie.
5.2.2
As indien my eggenoot
sou besluit om haar reg van habitatio te beeindig, sal sodanige reg
onherroepbaar
verval,
dog sal die ELMAR TRUST in sodanige geval verplig wees om vir my
eggenote 'n redelike en aanvaarbare drieslaapkamer
meenthuis/duethuis/huis
te verskaf in die noordelike voorstede van
Bloemfontein en sal my eggenote inspraak he om saam met die trustees
van die ELMAR TRUST
sodanige verblyfpleg te bekom.
lndien
die Trust genoodsaak is om sodanige huisvesting aan te koop, sal die
eiendomsreg van sodanige meenthuis/ duethuis woonhuis
die eiendom bly
van die ELMAR TRUST
.
"
[8]
The
grounds upon
which the
second respondent
objected to the L&D account are:
8.1
Claim in respect
of habitatio
-
the second respondent
alleges that this claim is not permissible in law for the following
reasons:
8.1.1
the ante-nuptial
contract entered into between the deceased and the applicant amounts
to nothing more than an agreement to
agree in future,
which is enforceable only in limited circumstances. Such
circumstances are not present in this matter, and the
agreement
between the deceased and the applicant is not valid and enforceable;
8.1.2
The deceased could
not prior to his passing cede any
right to habitation,
nor was there any
agreement ever concluded
in
terms of which the applicant
acquired
a right
of habitation;
8.1.3
No limited real right
of habitation was registered against the communal home in
terms of the Deeds
Registries Act 47 of 1927, therefore the applicant's purported right
of
habitatio
is not
enforceable against third parties;
8.1.4
the
ante-nuptial
contract does
not
create any legally
enforceable claim
the
deceased estate and
the
executor's
recognition of that claim is bad in law
.
8.2
Claim for
Spousal
Maintenance:
The
second respondent does not dispute that the applicant has a right to
claim spousal maintenance. He only takes issue with the
quantum
thereof, and complains that despite numerous requests, he was not
furnished with a proper breakdown of how the maintenance
value
reflected in the L&D account, was calculated. He accuses the
executor of accepting a claim which the applicant has inflated
to
derive a similar amount to that which she would have received if the
proceeds of the insurance policies bequeathed to her in
the deceased's Will,
had been paid to her. The policies were ceded to Nedbank and the
proceeds could not be paid to her could not
be paid to her.
[9]
The Master's
decision, communicated
in
a letter dated 12 May 2023, to
the firm of attorneys
at which the Executor practices, was couched in the following terms:
"1.
Please note that Objection by Honey Attorneys is upheld.
2.
Kindly amend the
account in respect of claim for Habitatio.
3.
Please note that the
surviving spouse can still approach Elmar Trust if she need
(sic)
to enforce
clause 5.2.2 of the Will"
The
Master
subsequently
furnished reasons for
his
decision, dated 24
July 2023, together with a record of proceedings. In essence, the
Master appears to agree with the second respondent's
contention that
the real right of
habitatio
was not
registered against the title deed of the communal property and was
therefore not enforceable in law. The Master also referred
to clause
5.2.2 of the deceased's Will, asserting that the applicant, in
his view, waived her
right to
habitatio
when she
consented to the sale of the farm Diepwater on which the communal
home was situated. She was therefore able to approach
the Elmar Trust
in terms of clause 5.2.2 of the Will to provide accommodation for
her. The Master therefore asserted that his decision
should not be
reviewed. The Master did not
mention or
deal with
the claim
in respect of
spousal maintenance
at all, and gave direction to amend the L&D account only in
respect of the
habitatio
claim.
[10]
The applicant
therefore proceeded on the basis that the maintenance claim was
upheld by the Master, and launched this application
for review only
in respect of the Master's decision relating to the
habitatio
claim.
Therefore, the issues for this court to adjudicate are whether:
10.1
the Master upheld the
second respondent's objections in respect of both the
habitatio
and
maintenance claims lodged by the applicant or only the objection in
respect of
habitatio
claim;
10.2
the applicant's claim
in respect of
habitatio
is
enforceable and whether it can be quantified in the money terms as
claimed by the applicant.
[11]
In support of her
contention that the Master upheld only the objection in respect of
habitatio,
the
applicant contends that the Master did not mention the maintenance
claim in his decision communicated on 12 May 2023, nor did
he mention
or give any direction in respect thereof in his reasons dated 24 July
2023. The Master's reasons were filed after the
founding papers in
this application were served on
him, hence he
was eminently aware
that the applicant sought to review and set aside only his decision
in respect of the
habitatio
claim.
[12]
The second respondent
prefaces his assertions in his Answering Affidavit, by pointing out
that in terms of section 35(10) of the
Estate's Act, the review
contemplated in this application, is not confined to the record
before the Master, but is a complete re
hearing of the matter
and a fresh determination of the merits, with or without additional
information or evidence. Therefore, the
applicant's contention that
the parties are confined to the documentation sent to
the Master prior to
his decision is
wrong.
The applicant is also wrong in contending that that the court is
confined to considering the merits of the matter on the
basis of the
express findings of the Master, as the court may make any finding it
deem meet on any matter relating to the issues
which were to be
considered by the Master
.
[13]
The second respondent
contends that the applicant's intention in lodging the claims she
did, is to derive a financial benefit from
the estate, whereas he
does not have such an intention.
The second respondent
contends further that claim in respect of
habitatio,
which was
accepted by the Executor, is a claim based on compensation for the
waiver of a limited real right "ostensibly"
created in
terms of the Ante-nuptial contract and not in terms of the deceased's
Will. The
Master's
finding
in
respect
thereof
was
confined
to
the
L&D account
as
not
being
competent
in
law,
and
such
finding
was correct.
[14]
The second
respondent's further contention is
that at the time of
the sale of the property, the applicant had not yet acquired a right
of
habitatio,
and had
only a right to claim registration of the limited real right of
habitatio
from the
estate as at date when such right would vest. When the property was
transferred from the estate, the applicant's right
to claim
registration of the right of
habitatio
became
unenforceable. On account of the applicant's waiver of her right to
claim registration, she was not entitled to claim compensation
as a
quid pro
quo
for
such waiver, in
the
absence of an agreement to that effect between her and the Executor.
The respondent alleges that the applicant and
the Executor did not
enter into such an agreement prior to the sale of the property, hence
the applicant had no enforceable right
of
habitatio
after the
sale of the property was concluded.
[15]
With regard to the
applicant's claim for maintenance, the second respondent alleges that
the Master's decision incorporates his
objection to the maintenance
claim. However, if it did not, then that amounts to a vitiating
misdirection. He then relied on the
court's wide discretion in
this matter to decide
the matter afresh, taking into account all the facts and
circumstances, and not merely those that were before
the Master. I
shall return to this aspect later.
[16]
In reply, the
applicant reiterated what she had said in Founding, namely that her
claims in
respect
of
habitatio
and
maintenance were
submitted to the Executor by her attorney on 30 March 2016. This was
after she was advised that the farm would
have to be sold to meet the
expenses of the estate, whereupon she sought legal advice regarding
her position with regard to her
right of habitation. When it became
clear to her that the proceeds of the insurance policies bequeathed
to her in the deceased's
would not be paid to her, she sought advice
on a
claim
for maintenance, which ultimately resulted in the claim for
maintenance being submitted. With regard to the calculation of
the
value of the right of habitation and the quantum of the maintenance,
she asserted that this was in accordance with methods
usually used in
the administration of estates.
[17]
I
mention further that
the applicant attached to her Replying Affidavit confirmatory
affidavits by her attorney as well as Mrs Hester
Johanna Catharina Du
Plessis, who is an attorney in the firm of the Executor
and who
was involved,
as a
representative of
the Executor, in
the administration
of the deceased
estate in this matter. She gave a detailed explanation with regard to
the role of the second respondent in the sale
of the farm Diepwater,
as well as the communications between her and the second respondent's
attorney, from which it
was
clear that he was aware that the
property would be
sold without the right of habitation encumbering the property, as the
Executor had accepted the claim of the appellant
for payment of the
value of that right, to enable her to consent to the sale to Raubex.
[18]
Section 35(10) of the
Estates Act provides that
"Any
person aggrieved by any such direction of the Master or by a refusal
of the Master to sustain an objection so lodged,
may apply by motion
to the Court within thirty days after the date of such direction or
refusal or within such further period as
the Court may allow, for an
order to set aside the Master's decision and the Court may make such
order as it may think fit."
The
parties correctly referred to the matter of
Friedrich and Others v
Smit NO and Others
2017 (4) SA 144
(SCA)
as authority for the
proposition that an application for the review of the Master's
decision in terms of this section was an appeal
in the wide sense,
where the court
could
consider the matter afresh and make
any
order it deemed fit (see para [14] of the judgment). (my
underlining). While the discretion of the court is wide, it must
still
be judiciously exercised, taking all the relevant facts and
circumstances into account.
[19]
The powers and duties
of an executor in a deceased estate are clearly stipulated in the
Estates Act. The legal position of the Executor,
briefly, is that he
is not the agent or representative of the heirs.
He is
tasked with
administering the
deceased estate, is
vested with the
assets and liabilities of the estate and he alone has the power to
deal with them. This responsibility means that
the position of the
Executor is a fiduciary one and requires of him to act at all times
in good faith, in terms of the deceased's
Will and to act in
accordance with the law. In respect of a number of aspects, the
Executor is subject to the supervision of the
Master. Where the
Executor acts legally and in terms of the law, a court will be slow
to interfere with
the
exercise of his discretion, unless improper conduct on
his part
is clearly
established. (
See
Meyerowitz on
Administration of
Estates
and
Their
Taxation, 2023 edition, 12.14, pages 148/149).
[20]
The
basis
of
the
second
respondent's
objection
to
the
claim
for
habitatio,
was
that
the
ante-nuptial
contract
did
not
create
any legally
enforceable claim against the estate. The deceased could not
cede
any
right
of
habitatio
to
the
applicant
nor
was
any agreement
concluded
in terms
of
which
the applicant
acquired
a right of
habitation.
Further,
that no real right of
habitatio
was ever
registered against the property as
required by sections
65 and 67 of the
Deeds
Registries
Act
47
of
1927.
Therefore,
the
applicant's
"purported" right
of
habitation
is
not
enforceable
against
third parties.
[21]
The second respondent
expanded these objections in this application, alleging that the
deceased's Will created a right to claim
registration of the right of
habitatio
in favour
of the applicant. Put differently, the
effect of
the bequest is
that it
created a
personal right to
claim performance by delivery of the servitude, namely registration
of the right against the title. The second
respondent further
contends that the applicant waived such right when she consented to
the sale, which resulted in the transfer
of the property to Raubex,
whereupon her right was unenforceable. The second respondent
correctly points out that the right is
enforceable against
third
parties
only
upon registration of
the right, and
he acknowledges that
it remains enforceable between the parties to the agreement, which,
in this case, would be the deceased and
the applicant. It is common
cause that the right of habitation was not registered. The right to
habitation as a servitude is a
limited real right which confers on
the holder the right to dwell in the house of another, without
detriment to the substance of
the property.
(See:
PJ Badenhorst et al,
Silberberg
and
Schoeman's
The
Law
of
Property,
5
ed
at 341.)
[22]
The other issue that
the second respondent raised is that it was impermissible for the
Executor to agree that the applicant would
be compensated as a
quid
pro quo,
for
her waiver of her right to
habitatio.
The second
respondent, as an heir in the deceased estate, was not consulted nor
was his consent obtained for the sale to
be subject to such a
condition. Hence the
conduct
of the
Executor
was unlawful. The second respondent also took issue with the method
of calculation of the quantum in respect of the
habitatio,
arguing
that one of the conditions in the deceased's Will was that she was
prohibited from renting out the property, or giving anyone
the right
of occupation of the property. She was, therefore, not permitted to
use the amount of rental that she could obtain for
the property as a
basis for calculating the value of the
habitatio.
In this
regard, it has been an established principle in our law, from time
immemorial, that the holder of a right of
habitatio
is
permitted to let the property over which such a right is held.
[23]
It is also well established in our law that the wishes of a testator,
as expressed in his Will, must be given
effect to, unless the law
prevents the executor from doing so. It may well be argued that the
prohibition placed by the deceased,
in his Will, upon the applicant
against letting the
property
may be unlawful. Although the
validity of the
deceased's Will or parts thereof is not before me, the second
respondent's argument that it was impermissible for
the applicant to
calculate the value of the
habitatio,
based on
the amount of the rental that could be obtained for a property
similar to the communal home, cannot be
sustained, as she
is allowed in
law to have derived
rental from the property. In any event, as I understood it, the
reason for
obtaining
a
rental
value
for
a
similar
property, is
to
determine how
much she would have been
required to pay in rent, should she have leased
a similar property.
Even if
she
wanted to ascertain how much she would be entitled to charge as rent
for the communal property, she would not be acting unlawfully,
as the law permits
her to let the property to others. The calculation of the right of
habitation is, to my mind, a fair and logical
method of determining
the value of the applicant's right of
habitatio
[24]
The second respondent
also appears to have overlooked the established position in our law,
as repeated and expounded in
Kidson
and Others v Jimspeed Enterprises
CC
and Another
Case 38574/08, North Gauteng High Court, delivered on 20 April 2009,
where the
court, in examining numerous historical legal texts and relevant case
law said in para [9]:
"When
the person who has the right of
habitatio
abandons
the right, it lapses. As a personal servitude it also lapses on the
death of the holder of the
habitatio.
Before
that the holder of the right may, of course
,
reach
an agreement with the
owner of the
burdened
property
to
abandon his limited real right and to accept
as a
quid
pro quo
some
compensation for this waiving of his limited real right.
This does not amount
to a "transfer" of the limited real right to the owner, but
will have the consequence that the erstwhile
burden encompassed
in the limited real
right falls away and the entitlements of the owner of the then
unburdened ownership will automatically return
to the original
unburdened position, thanks to the elasticity of the real right of
ownership." (my underlining)
[25]
The applicant had
always expressed the intent to enforce her right of habitation and at
no stage did she either expressly or by
her conduct manifest an
intention to waive such right. The second respondent's
argument that
the Executor was not
permitted to
agree that the
applicant would be compensated for the value of her right of
habitatio
is
misplaced. The Executor stood in the place of the deceased, as owner
of the property, and was authorised by virtue of
his statutory
powers as Executor to
make such an
agreement with the
applicant. In addition, it was also his duty to entertain all claims
against the
estate,
to consider them carefully and
to
either accept or reject
such
claims.
As
he
alone
has
the
power to deal
with
the
assets
of the deceased estate, he does not need the consent of the heirs to
admit or deny a claim lodged against the estate. The
applicant's
claim for
habitatio
was a
claim against the estate, which she lodged with the Executor. It was
a fully motivated claim which set out in detail the methodology
employed in arriving at the figure that she claimed. The Executor
considered and admitted the claim, as he was entitled to do.
[26]
The agreement to
compensate the applicant for her right of
habitatio
was not a
condition of the sale of the property, as the second respondent
argues, rendering that argument of the second respondent
also without
merit. The Executor accepted the offer to purchase and then
approached the heirs for their consent to the sale. It
was then that
the applicant raised the issue of her right of habitation, which
resulted in the agreement that she would be compensated
for the value
of such right, in return for which, she would consent to the sale of
the property. This would enable the Executor
to effect the sale of
the property, free of encumbrances, which was achieved. Second
respondent was made aware of this, via his
legal representatives. He,
however, embarked on a long, unnecessary and irrelevant discourse of
the law relating to
the rights of the
heirs and duties of the executor in relation to the sale of immovable
property in a deceased estate. The argument
of the second respondent
that his consent was required for the Executor to admit the
applicant's
habitatio
claim
cannot be sustained.
[27]
It appears from the
Master's reasons that he relied on the reasons tendered
by the
second respondent for
his objections to
the
habitatio
claim and
paid little or no heed to the Executor's reasons for admitting the
claim. The Master's reasons do not reflect a careful
examination
or consideration of
the legal position relating to
the right of
habitatio
in the
light of the second respondent's objections and the Executor's
response thereto. Such an exercise would have assisted the
Master to
conclude that the grounds of the second respondent's objections, as I
have set out above, were misplaced. Paragraph 9
of the Master's
reasons bear out the point I make that he merely accepted and
repeated the objections of the second respondent,
without properly
considering the merits thereof, in the light of the applicable legal
principles. He avers that the applicant waived
her right of
habitation by consenting to the sale of the property, which I have
shown is not the position.
[28]
In addition, the
Master did not consider the enforceability of clause 5.2.2 of
the deceased's Will,
which stipulates that in
the
event of
the
applicant terminating her right of habitation, she could approach the
Elmar Trust, which would be obliged to purchase a three
bedroomed
dwelling
for
her
in
the
northern suburbs of
Bloemfontein.
The
applicant
alleged
that
she
is
not
a
beneficiary in the
Elmar
Trust, nor is there any apparent legal duty upon the Trust to
purchase a house for the applicant. This aspect was pointedly
raised
by the applicant
in
her
Founding
Affidavit, which was
served
on
the
Master, prior to his providing his reasons for upholding the second
respondent's objections to the
habitatio
claim. It
was expected of him to indicate why, after considering her
allegations in the Founding Affidavit, the applicant was wrong
in
her assertions in
this regard, leading him to stand by his view that the Elmar Trust
was legally obliged to purchase a house for
her, should she have
requested it to. It is difficult to avoid the conclusion that the
Master misdirected himself by not giving
proper consideration to the
circumstances of this
matter
as
well
as
the
law applicable to
the
right of
habitatio,
and in
failing to assess the validity of the second respondent's objections
in the light thereof. For the reasons set out above,
I am of the view
that there is no merit in the objections of the second respondent in
respect of the applicant's
habitatio
claim, and
that the Master ought not to have upheld such objections.
[29]
With regard to the
applicant's claim for maintenance, the claim was fully set out and
motivated in respect of the applicant's needs.
It is clear that the
Executor considered the claim carefully and ensured that it complied
with the requirements of the Maintenance
of Surviving Spouses Act 27
of 1990 (the MSSA)
.
In his
response to the second respondent's objections to this claim, the
Executor states that the
"maintenance
claim contains
a
comprehensive
motivation and calculation of the claim and complies with the
provisions of the Maintenance for Surviving Spouses
Act"
He
then proceeded to set out the factors stipulated in the MSSA to be
taken into account in determining the reasonable maintenance
needs of
a surviving spouse , and concluded by saying that he was and still is
of the view that the claim complies with the MSSA.
[30]
The Master's decision
nor his reasons make any mention of the second respondent's objection
to the maintenance claim. In his decision
he explicitly mentions only
the
habitatio
claim and
directs the Executor to amend the L&D account only in respect of
the
habitatio
claim. He
was aware that in her Founding Affidavit, the applicant sought to
review and set aside only his decision in
respect of the
habitatio
claim
(refer to paras 23, 77 and 88 of the Founding Affidavit). If he had
in fact upheld the objections in respect of the maintenance
claim, he
would
.
have
mentioned that in
his
reasons for his decision. It is clear that the Master considered the
claim in the light of the objections raised by the second
respondent
and agreed with the Executor's reasons for admitting the claim, as
set out in the latter's response to
the objections. The
respondent's
contention that Master's indication that his "objections"
were upheld also encompassed the objections to
the maintenance claim
are without merit and do not require any further discussion. As I
indicated, the salutary practice in our
law is that a court will be
slow to interfere with the discretion of the Executor if he has not
misdirected himself or exercised
his discretion improperly in
administering an estate. I cannot find that the Executor in the
present matter conducted himself in
a manner that warrants this
court's interference.
[31]
Two
final
points
that
bear
mention
are,
firstly,
that
the
second
respondent argues
that if the Master did not uphold his objection to the maintenance
claim, then such is a "vitiating misdirection".
From what I
have said in respect of the Master's decision and reasons on this
aspect,
it
ought
to
have
been
plain
that
the
Master
did
not uphold the
objection to
the
maintenance claim.
The second respondent made no attempt to apply in terms of section
35(10) of the Estates
Act
to review the Master's
refusal
or failure to uphold
that
objection.
It does not assist him
now
to
proverbially
sneak
in
the back
door
and
expect
this
court
to
do
so,
under
the
guise
of exercising its
wide discretion in this matter.
[32]
Secondly, the second respondent repeatedly made allegations and
insinuations of improper and unlawful conduct on the
part of the
Executor, even going as far as saying that the Executor behaved as
though the applicant was his client, and insinuating
that the
Executor was prejudicing the rights of other heirs by colluding with
the applicant in accepting an inflated maintenance
claim to make up
for her not receiving the amount of the insurance policies bequeathed
to her in terms of the deceased's Will but
which were ceded to
Nedbank. Other than his criticism of certain of the applicant's
expenses and his perception of what he alleges
she did not disclose,
he puts forward no concrete basis for these assertions. The conduct
he accuses the Executor of are serious
enough for the Executor to be
removed from his position as Executor. The second respondent has not
availed himself of the procedure
in the Estates Act to have the
Executor removed. It therefore does not lie• in his mouth to
make such untenable accusations.
[33]
In summary, the
grounds of the second respondent's objections against the applicant's
habitatio
claim are
without merit and fall to be dismissed. Similarly, the Master was
correct in his refusal to uphold
the
objection in
respect of
the
applicant's
maintenance claim.
[34]
In the circumstances
I make the following
orders:
34.1
The applicant's
non-compliance with the time period prescribed in section 35(10) of
the Administration of Estates Act 66 of 1965
(the .Estates Act) is
condoned and
such period is
extended until
the
date of issue of this
application;
34.2
The decision of the
first respondent dated 12 May 2023 to uphold the second respondent's
objections to the applicant's claim for
habitatio,
as
reflected in the First and Final Liquidation and Distribution account
dated 5 July 2022, is set aside in terms of section 35(10)
of the
Estates Act;
34.3
The second
respondent's objections to the First and Final Liquidation and
Distribution Account are dismissed;
34.4
The third respondent
is directed to amend the First and Final Liquidation and Distribution
Account dated 5 July 2023 to include
and reflect the applicant's
claim in respect of her right of
habitatio
in the
amount of R1 113 481.50, as a claim for
habitatio
in terms
of clause 5.2 of the Last Will and Testament of the late Leon Pieter
Maree, read with clause 5 of the ante-nuptial contract,
entered into
between the late Leon Pieter Maree and the applicant and registered
on 27 November 1997 under number H1751/1997;
34.5
The second respondent
Is directed to pay the costs of this application.
S
NAIDOO J
On
Behalf of the Applicants:
Adv
CD Pienaar
Instructed
by:
Kuhn
&
Associates
Kenneth
Kaunda Road Bayswater
Bloemfontein
(Ref:
TM Kuhn)
On
Behalf of
the
2
nd
Respondent:
Adv
R Van Der Merwe
Instructed
by:
Honey
Attorneys
Honey
Chambers
Kenneth
Kaunda Road
Bloemfontein
(Ref:
CH du Plessis)