Letters to the editor

August 25th, 2015
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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Administration of deceased estates and the accrual system.

The recent article by Clement Marumoagae titled ‘The beginning of the end – dissolution of marriage by accrual system2015 (July) DR 36 refers.

Although the author touches on very important practical aspects of the accrual system, should a marriage end in divorce, it struck me how little attention was devoted to possible scenarios where a marriage ends with the death of a spouse.

Making the accrual system applicable to a marriage out of community of property, does not only have benefits. Dealing mainly with the administration of deceased estates, I was confronted with this scenario more than once. A marriage of this kind can have devastating effects for a surviving spouse, especially where the estate of the latter was the one with the bigger growth. This becomes evident in cases of a second or later marriage where a person dies intestate. The children of the deceased (which are not the children of the surviving spouse) will become entitled to the proceeds of 50% of the nett growth in the estate of the surviving spouse after deducting the value of the estate of the deceased. This means that the surviving spouse might have to realise certain of his or her assets, which can include a house, farm or investment, assets that might be important for his or her future survival.

Even where a person dies with a will excluding the surviving spouse and leaving his or her entire will to his or her children from a previous marriage, these heirs will have a claim for the 50% of the growth in the estate of the surviving spouse.

In calculating the claim, it will of course be considered where the money with which the surviving spouse had acquired the asset(s) came from. Was it obtained with an inheritance benefit or by means of a compensation benefit? Was the asset excluded from the accrual system ab initio? All these examples will constitute a scenario where assets will not be taken into account for purposes of ascertaining the ‘growth’ in the estate of the surviving spouse. Matters can get complicated.

In general, I do not find it advisable for couples to enter into a second or further marriage by way of antenuptial contract where the accrual system will be applicable. More often than not, these spouses already have a family of their own whom they want to benefit from their deceased estates. It is obvious that the estate of the surviving spouse can suffer damages in cases as set out above, at the cost of the eventual heirs of the surviving spouse. This could not have been the objective for instituting the Matrimonial Property Act 88 of 1984. The main purpose was to come to the aid of spouses who did not have the opportunity to amass an estate of their own, at the dissolution of a marriage (in either of the two ways envisaged by the Act) without having to marry in community of property.

A complete article by an expert dealing with problematic results that might arise from the accrual system (including applicable recent law reports) will be appreciated.

Milda Stanton, attorney, Pretoria

Silver lining

With the recent developments in the Road Accident Fund (RAF) it is hard to believe that there still are officials employed at the RAF who really strive to finalise matters amicably.

After the implementation of the ‘new’ Act many practitioners, including myself, were sceptical as to how the matters would be dealt with at the RAF.

During 2014 I dealt with a matter of a claimant who sustained severe injuries leaving him totally disabled. I do not find it necessary to go into details pertaining to the merits and the quantum aspects of this claim.

The claim was dealt with by Willem Pretorius and Annamarie Hammond of the Pretoria office of the RAF, who contacted our offices, requested certain additional information and documentation. After our offices furnished them with the relevant additional documentation and information, several meetings were scheduled between writer hereof and the aforementioned officials of the RAF, where after the matter was settled amicably within a period of two years after the dreadful accident.

Both Mr Pretorius and Ms Hammond dealt with the matter professionally.

So it seems that even the RAF has a silver lining.

Carli Lundy, attorney, Nelspruit

 

This article was first published in De Rebus in 2015 (Sep) DR 4.

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