aug succ: limitations freedom of testation Flashcards
how does the immovable property act limit freedom of testation
- Limits creation of fideicommissum to 2 fideicommissaries
- If more than 2, then when transferred to Fideicomissary 2, it is transferred free of the fideicommissum.
- Court can remove/modify conditions restrictions on immovable property if to the advantage to the person developing the property
how does S 37C Pensions Fund Act limit freedom of testation
(1) Notwithstanding anything to the contrary contained in any law … any benefit payable by such a fund upon the death of a member, shall, …, not form part of the assets in the estate of such a member, but shall be dealt with in the following manner: …
- Member of a pension fund is required to fill out a form stipulating who will receive the pension pay out in the event of death.
- Regardless of who you nominate on the form, the board of the fund has the discretion on how to distribute your pension and can give it to your nominated beneficiary or dependent.
- Dependent is someone that you are legally liable to maintain or were in fact maintaining. (Legal / factual dependent).
- The board can override your decision of your nominated beneficiary based on the needs of the dependent.
how does S13 of the Trust Property control act limit freedom of testation
Power of court to vary trust provisions.
if:
(a) hampers the achievement of the objects of the founder; or
(b) prejudices the interests of beneficiaries; or
(c) is in conflict with the public interest,
how does maintenance of children work
- RDL did not allow children to claim from estate, entitled to a fixed portion
- SA abolished legitimate portion
- Carelse: Child who is not able to support himself can claim maintenance from the estate.So the deceased estate may be liable for the continued maintenance, support & education of their children if they cannot adequately support themselves.
what is the ranking of a child’s claim to maintenance
- Subordinate to the claims of creditors
2. Preferred to legatees and heirs
Can major children claim maintenance from the estate?
Hoffmann:
Plaintiff, a 56 year old teacher who due to ill health could not support herself, claimed maintenance from father’s estate. Onus on claimant to show that she needs support. Carelse does not distinguish between minor and major children when it comes to duty of support & allows claim. Required to show a need for maintenance & that you cannot generally support yourself.
Can grandchildren claim maintenance from the estate?
- Living grandparents may have a duty to maintain grandchildren.
- However, no clear recognition of grandchild’s claim for maintenance against the deceased estate.
- Academics argue that a grandchild should have a claim of maintenance against the estate (based on the rights of the child and dignity) but this has not yet been recognised
Glazer v Glazer
Maintenance of Surviving spouse: applicant claimed maintenance from the estate of deceased husband who she had been married to out of community of property and who had left her nothing in the will. No common law claim for maintenance against deceased estate as had not been received into Roman Law. Only legislature can create duty. Application dismissed.
when does the MSSA apply
o Surviving spouse disinherited and in need of maintenance
o Surviving spouse named as beneficiary but not sufficient to meet needs
what can you claim under MSSA
S2(1): If marriage is dissolved by death, survivor has a claim against estate for reasonable maintenance needs until death or remarriage to the extent cannot provide therefor from own means and earnings.
own means in MSSA
Money or property or other financial benefit accruing to the survivor in terms of matrimonial property law, law of succession or otherwise.
This is broadly defined to take into account your inheritance, portion of the joint estate, how much you actually have to look after yourself.
What are reasonable maintenance needs?
In addition to any other factor, must consider:
b) Amount available for distribution;
c) the existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage;
d) the standard of living of the survivor during the subsistence of the marriage and his age at the date of death of the deceased.
Oshry v Feldman
financial contributions & acts of generosity from third parties (i.e sons) not included in calculating expected means
MSSA- Ranking of claim?
S2(3)(b): same as a child’s claim for maintenance & if they compete, they are reduced proportionately.
Can you be disqualified from claiming maintenance in the same way you are disqualified from inheriting from the deceased?
- Maintenance of Surviving Spouses Act, 1990 is silent & no case law.
- Arguable that since the law has been extended to other benefits (i.e pension benefits and sharing in joint estate) it could be extended to a disqualification from claiming maintenance.
