SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
Not reportable
CASE NO: 4133/2025
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
GERHARDUS V AN DER WESTHUZEN N.O First Applicant
(In his capacity as the executor in the estate of the late
I[...] J[...] H[...], estate number
2024/2023)
GERHARDUS V AN DER WESTHUZEN N.O Second Applicant
(In his capacity as the trustee of the
IJ Testamentary Trust, M[…](1)(M)
and
THE MASTER OF THE NORTH WEST HIGH First
Respondent
COURT (estate number: 2024/2023)
A[...] H[...]
(Identity Number: 6[...]) Second Respondent
Coram: Matlhape AJ
Heard: 23 January 2026
Delivered: Judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to SAFLII. The date and
time for handing down of the judgment are deemed to be 16h00 on 06 May
2026.
Summary: Section 35 (10) of the Administration of Estates Act 66 of 1965 –
objection against first and final Liquidation and Distribution Account related to
the maintenance claim of an ex-spouse which had been allowed by the Master –
Duty of an estate to support an ex -spouse after divorce where parties had
entered into a settlement agreement regarding maintenance. Divorce Settlement
agreement neither expressly states nor tacitly imply that the duty of support
shall extend beyond the death of the deceased – The court seized with such an
application to consider the matter afresh – Master’s decision is set aside.
________________________________________________________________
ORDER
________________________________________________________________
1. The decision of the first respondent dated 14 April 2025, upholding the
second respondent’s objection to the first and final Liquidation and
Distribution Account in the estate of the late I[...] J[...] H[…], is set aside
and substituted with the following:
(a) The second respondent’s objection to the omission of her claims
for future maintenance and future medical expenses from the
Liquidation and Distribution Account is dismissed.
(b) It is declared that the second respondent’s claims for future
maintenance and future medical expenses under clause 2 of the
deed of settlement concluded on 4 July 2018 and made an order of
court on 13 August 2018 are not enforceable against the deceased
estate.
2. The executor is directed to include in the Liquidation and Distribution
Account any arrear maintenance which had accrued and remained unpaid
as at the date of the deceased’s death, including the amount of R36
000.00, if established.
3. Each party to pay its own costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
MATLHAPE AJ
Introduction
[1] This is an application in terms of section 35(10) of the Administration of
Estates Act 66 of 1965 (“The Estates Act”). The applicants seek to set aside the
decision of the Master of the High Court, Mahikeng, dated 14 April 2025 in
terms of which the Master upheld the second respondent’s objection to the first
and final Liquidation and Distribution Account ( L and D Account) in the estate
of the late I[...] J[...] H[...] (“the deceased”). The objection related to
maintenance claims lodged by the second respondent, the deceased’s former
wife, which claims had been rejected by the executor and omitted from the L
and D Account.
Contextual Background
[2] The second respondent and the late I[...] J[...] H[...] (“the deceased”) were
married in 1989 out of community of property, subject to the accrual system.
During the subsistence of the marriage, the parties jointly acquired and
developed farming operations, to which the second respondent alleges she made
substantial financial and personal contributions over several years.
[3] The second respondent was employed as a teacher . A t various stages,
received pension payouts which she avers were invested into the farming
enterprise. She further contends that she contributed an inheritance received
from her late mother-in-law towards the family’s farming activities. In addition,
she managed the farming operations during periods when the deceased was
incapacitated, including after his brain operation in 2009.
[4] The parties divorced in 2018. As part of the divorce proceedings, they
concluded a deed of settlement on 4 July 2018, which was subsequently made
an order of court on 13 August 2018. In terms of that agreement, the second
respondent elected not to pursue her accrual claim. In exchange, the deceased
undertook to pay her maintenance in the amount of R12 000.00 per month,
together with her reasonable and necessary medical expenses, including
medical-aid contributions.
[5] The settlement agreement provided that such maintenance would endure
until the occurrence of one of the following events , being, either the death of
the second respondent, her remarriage or her cohabitation. The agreement,
however, did not expressly stipulate that the maintenance obligation would
survive the death of the deceased or bind his estate.
[6] The deceased passed away on 30 March 2023. Following his death, the first
applicant, in his capacity as executor, proceeded to prepare the first and final L
and D Account . In doing so, he rejected maintenance claims lodged by the
second respondent on the basis that such claims were not enforceable against
the deceased estate.
[7] The second respondent lodged two principal claims against the estate, being,
a claim for future maintenance, calculated with reference to her life expectancy
and based on the monthly maintenance stipulated in the settlement agreement
and a claim for future medical expenses, similarly calculated on a prospective
basis. She had also lodged a claim for maintenance on behalf of her son. There
is no objection regarding the son’s claim.
[8] The executor rejected the second respondent’s claims and excluded them
from the L and D Account. Aggrieved by this, t he second respondent launched
an objection to the L and D Account in terms of the Estates Act.
[9] On 14 April 2025, the Master upheld the second respondent’s objection and
directed that the L and D Account be amended to include the maintenance
claims. The Master reasoned, inter alia, that in common law contractual
obligations are not automatically terminated by the death of a party and that the
second respondent was entitled to rely on the settlement agreement for such
claims.
[10] Likewise, the applicants, a ggrieved by that decision, instituted the present
proceedings seeking to set aside the Master’s decision and to substitute it with a
determination that the second respondent’s claims for future maintenance and
medical expenses are not enforceable against the deceased estate.
[11] The second respondent filed a notice to abide the decision of this Court ,
together with an explanatory affidavit wherein she maintains that she has a
legitimate interest in the estate and should not be mulcted in costs, given her
financial circumstances and the basis upon which she lodged her objection.
Issue For Determination
[12] The crisp issue is whether, on a proper interpretation of the Deed of
Settlement, the Divorce Act 70 of 1979 and the common law, the deceased
estate remains liable for the deceased’s post -divorce maintenance obligations
after his death.
Legal Framework
[13] Section 35(10) of the Administration of 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”.
[14] Section 35(10) of the Act permits any person aggrieved by a direction of
the Master concerning a L and D Account to apply to court for relief. Once such
a matter comes before a court, such a court is not confined to a narrow review
of the Master’s reasoning. The court should consider the matter afresh and may
make such order as it considers just and equitable, considering the
circumstances of the case.
[15] The nature of proceedings under section 35(10) has been authoritatively
settled. In Friedrich v Smit NO and Others 1 the Supreme Court of Appeal
held that such proceedings are in the nature of an appeal in the wide sense. At
paragraph 14, the Court stated:
1 2017 (4) SA 144 (SCA)
“The power conferred by s 35(10) of the Estates Act on the Court is, as the court a
quo stated, an appeal in the wide sense in that ‘the Court can consider the matter
afresh and may make any order it deems fit’. (See Meyer v Iscor Pension Fund 2003
(2) SA 715 (SCA) at 725I.) The decision of the Master referring the matter to court
for the determination of quantum did not mean that the court was confined to the
determination of the quantum. It had to apply its mind to the matter afresh. Once it
was found that Mrs Friedrich did not lead any evidence to show that she was entitled
to reasonable maintenance, that should have been the end of the matter”.
[16] Section 7(1) of the Divorce Act provides that:
“In the absence of an order made in terms of subsection (1) with regard to the
payment of maintenance by the one party to the other, the court may, having
regard to the existing or prospective means of each of the parties, their
respective earning capacities, financial needs and obligations, the age of each
of the parties, the duration of the marriage, the standard of living of the parties
prior to the divorce, their conduct in so far as it may be relevant to the
breakdown of the marriage, an order in terms of subsection (3) and any other
factor which in the opinion of the court should be taken into account, make an
order which the court finds just in respect of the payment of maintenance by
the one party to the other for any period until the death or remarriage of the
party in whose favour the order is given, whichever event may first occur.”
[17] consequently, the above section enjoins a court granting a decree of
divorce to make an order in accordance with a written agreement between the
parties regarding maintenance, where a settlement agreement exists.
[18] The Supreme Court of Appeal considered this provision directly in Kruger
NO v Goss and Another 2. The issue there w as whether an order for
rehabilitative maintenance, pursuant to a decree of divorce, is enforceable by a
spouse against her former husband’s deceased estate. The SCA held that such a
claim was not enforceable unless the parties had expressly or tacitly agreed that
the deceased estate would remain bound after death. The Court also reaffirmed
the common-law principle that the reciprocal duty of support between spouses
is an incident of the matrimonial relationship. When the marriage is terminated
by death, that duty ordinarily comes to an end. The Maintenance of Surviving
Spouses Act 27 of 1990 created a statutory claim for surviving spouses in
certain circumstances, but that statute does not extend to former spouses.
[19] Importantly, the SCA held that a spouse may agree to bind his or her
deceased estate to pay maintenance after death, but that such an intention must
be apparent from the agreement. The Court stated that “a spouse is free to agree
to bind his/her estate to pay maintenance after death”, but found that this had
not occurred in that case.
Analysis
[20] The second respondent’s claim is founded entirely upon clause 2 of the
Deed of Settlement. That clause provides that maintenance is payable until the
second respondent’s death, remarriage or cohabitation. It does not provide that
2 [2009] ZASCA 105; 2010 (2) SA 507 (SCA).
the deceased’s estate shall remain liable after his death. Nor does it contain
language indicating that the obligation was intended to survive the deceased’s
death.
[21] The fact that the maintenance was payable until the second respondent’s
death does not, without more, mean that the deceased estate became bound.
That wording identifies the terminating events relating to the beneficiary
spouse. It does not expressly or by necessary implication impose liability on the
deceased estate.
[22] The distinction is material. An obligation binding the estate after death is a
serious limitation on freedom of testation and on the rights of heirs, dependants
and other creditors. Such an obligation should not lightly be inferred. Had the
parties intended that the estate would remain liable for maintenance and medical
expenses after the deceased’s death, they could and should have said so in clear
terms.
[23] The Master appears to have approached the matter on the broad proposition
that contractual obligations do not automatically terminate on death. That
proposition, while generally correct in ordinary contractual matters, does not
resolve the present dispute. The claim in issue is not an ordinary commercial
debt. It is a post -divorce maintenance obligation rooted in the Divorce Act and
in the former matrimonial relationship.
[24] As stated herein above, t he effect of death on post -divorce maintenance
obligations was considered in Kruger, where the Court recognised that parties
are not precluded from extending such liability beyond death, but that clear
intention is required. At paragraph 16, the Court held:
“Of course a spouse is free to agree to bind his/her estate to pay maintenance
after death. That is not what occurred in the present case. To allow
maintenance claims of the kind encountered here against deceased estates
might have all sorts of undesirable consequences. The legitimate claims to
maintenance of minor children might be diminished or excluded. And, the
rights of beneficiaries might be implicated. Section 3(b) of the MSSA provides
that a claim for maintenance of a surviving spouse shall have the same order
of preference against the estate of the deceased spouse as a claim for
maintenance of a dependent child of such deceased person and that in the
event of competing claims, each shall, if necessary be reduced proportionately.
Theoretically, a claim for maintenance such as the present one could compete
with the claim of a surviving spouse and with claims by dependent children
and beneficiaries. In the absence of legislative regulation the permutations and
uncertainties abound.
[25] The second respondent’s personal circumstances and her alleged
contributions to the farming operations during the marriage may evoke
sympathy. She states that she contributed pension payments a s well as the
inheritance monies towards the family farming activities and that she agreed not
to enforce the accrual system on condition that the deceased would pay
maintenance. Those considerations, however, cannot create a claim against the
deceased estate where the deed of settlement itself does not do so.
[26] If the second respondent compromised an accrual claim or other
proprietary claim during the divorce, her rights are determined by the terms of
the settlement agreement. The court cannot now recast that settlement into a
post-mortem estate obligation where the agreement contains no such provision.
[27] The claim for future medical expenses stands on the same footing. It is
ancillary to the maintenance clause and was part of the deceased’s personal
maintenance obligation during his lifetime. In the absence of an express or tacit
term binding the estate, the claim for future medical -aid premiums and medical
expenses is not enforceable against the estate.
[28] A different conclusion would create uncertainty in the administration of
deceased estates. It would permit open -ended maintenance claims by former
spouses to compete with the claims of heirs, creditors, surviving spouses and
dependent children without clear statutory regulation or contractual wording.
That is precisely the concern identified by the Supreme Court of Appeal in
Kruger.
Arrear Maintenance
[29] A distinction must, however, be drawn between future maintenance and
arrear maintenance which had accrued before the deceased’s death. Any
maintenance instalment which fell due during the deceased’s lifetime, and
remained unpaid at the date of death, constitutes an accrued debt. Such a debt is
enforceable against the estate.
[30] On the facts placed before this Court, the applicants accept that arrear
maintenance in the amount of R36 000.00 may be included in the Liquidation
and Distribution Account , subject to the second respondent accepting liability
for the costs occasioned by the reframing and re -advertising of the account.
That concession is properly made. The arrear amount is distinguishable from the
claim for future maintenance.
Conclusion
[31] I am satisfied that the Master erred in upholding the second respondent’s
objection insofar as it related to future maintenance and future medical
expenses. The deed of settlement does not expressly or tacitly bind the deceased
estate. The common law, the Divorce Act and the binding authority of Kruger
all point to the same conclusion , that, the second respondent’s claim for future
maintenance and future medical expenses is not enforceable against the
deceased estate.
[32] The application must therefore succeed.
Costs
[33] It is trite that the issue of costs is in the discretion of the court and that the
court must exercise that discretion judicially having regard to the
circumstances of each case. In this matter, the Applicants are the ones
who approached the court as they are the parties aggrieved by the
decision of the First Respondents. Therefore, the Second Respondent had
a valid and lawful interest in the matter, hence she abides the decision of
the court. Therefore, there shall be no order as to costs against the second
respondent, she having filed a notice to abide and having a legitimate
interest in the administration of the estate.
Order
[34] Consequently, the following order is made:
1. The decision of the first respondent dated 14 April 2025, upholding the
second respondent’s objection to the first and final Liquidation and
Distribution Account in the estate of the late I[...] J[...] H[...], is set aside
and substituted with the following:
a. The second respondent’s objection to the omission of her claims
for future maintenance and future medical expenses from the
Liquidation and Distribution Account is dismissed.
b. It is declared that the second respondent’s claims for future
maintenance and future medical expenses under clause 2 of the
deed of settlement concluded on 4 July 2018 and made an order of
court on 13 August 2018 are not enforceable against the deceased
estate.
2. The executor is directed to include in the Liquidation and Distribution
Account any arrear maintenance which had accrued and remained unpaid
as at the date of the deceased’s death, including the amount of R36
000.00, if established.
3. Each party to pay its own costs.
__________________________________
MATLHAPE B
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances:
Judgment reserved: 23 January 2026
Judgment delivered: 06 May 2026
For the applicants: Advocate CD Pienaar SC
Instructed by: Nienaber & Wissing Attorneys
Mahikeng