Receiving financial support from a deceased estate: What you should know

FUNGAI CHIMWAMUROMBE AND RACHEL SITHOLE

If you are a family member who is under the care of another family member, what happens when that family member passes away?

Did you know that in terms of Section 3 of the Deceased Persons Family Maintenance Act [Chapter 6:03] a dependent of a deceased person, can claim maintenance from the deceased estate, this is done by lodging an application with the Master of the High Court, within three months of the granting of letters of administration to the executor of the deceased estate. The Application is then forwarded to either the High Court or Magistrates Court, a hearing date is set and the court then decides whether or not to award maintenance.

Who are Dependents of a deceased estate according to the law?

“dependent“, in relation to a deceased, means;

1. a surviving spouse;
2.  a divorced spouse who at the time of the deceased’s death was entitled to the payment of maintenance by the deceased in terms of an order of court;

iii.     a minor child;

1.  a major child who is, by reason of some mental or physical disability, incapable of

                   maintaining himself and who was being maintained by the deceased at the time of his

                   death

1. parent who was being maintained by the deceased at the time of his death;
2. any other person who was being maintained by the deceased at the time of his death; or was entitled to the payment of maintenance by the deceased at the time of his death;

One can agree that dependents have various needs, for example a dependent might have educational financial needs or urgent medical expenses such as prescriptions that need refilling on a periodic basis. It is necessary therefore to know what form of financial support can be awarded by the court. The forms of financial support are dealt with in Section 8 of the Act and are as follows;

Forms of Financial Support,

1. Periodic payments to the dependent of an amount determined by the court for a definite or indefinite period
2. A lump sum payment to the dependent determined by the court.
3. Periodic or lump sum payment into the Guardianship Fund referred to in section 97 of the Administration of Estates Act [Chapter 6:01], for the benefit of those who cannot manage their own affairs such as minors, unborn heirs, absent or missing persons and administered to a guardian
4. An order for transfer of property to the dependent
5. An order conferring a usufruct on the dependent, of an asset of the deceased estate, this means that a right to derive income or a benefit from an asset, such as rentals from a property is given to the dependent by the court.
6. An order for the establishment of a trust (this is an entity that contains assets held under the care of trustees for the benefit of the dependent) or fideicommissum for the dependent (a fideicommissum means a deferred benefit, for example property that is passed to one person subject to it being passed to the dependent at a later stage)
7. An order to acquire property and transfer the acquired property to the dependent. Such acquired property can be placed in a trust or fideicommissum for the benefit of the dependent
8. An order for the variation of an antenuptial contract or provision of marriage made by spouses, for the benefit of a surviving spouse dependent or child dependent.
9. For the benefit of the dependent, an order for the variation of the transfer of the deceased’s estate whether governed by a will or according to the laws relating to estates that do not have wills.

All awards are at the discretion of a court, this means that a court works to act in a fair manner and makes a decision after taking into consideration all factors concerning the dependents situation. It is important to note further that a court in terms of section 9 may make what are called interim orders, these are temporary orders given while a court is determining the financial award to grant the dependent. The two requirements for interim orders are that;

1. The applicant/ dependent must be in need of immediate financial assistance
2. Property forming part of the estate is or can be made available to meet the needs of the applicant/ dependent

Not many dependents know about their ability to be supported by a deceased estate and this has led many to be prejudiced of support that is rightfully theirs.

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Zenas Legal Practice and can be contacted at fungai@ zenaslegalpractice.com 

Rachel Mary Sithole is a partner at Zenas Legal Practice and can be contacted on rachel@zenaslegalpractice.com and +263 73 590 5092