Court case: Friedrich and Others v Smit NO and Others


In Friedrich and Others v Smit NO and Others [2017] ZASCA 19; 2017 (4) SA 144 (SCA), the Supreme Court of Appeals (SCA) held on 23 March 2017 that an appeal against a decision by the Master under section 35(10) of the Administration of Estates Act, 66 of 1965, is an appeal in the wide sense.  This means that the court can look at the facts afresh and make a fresh finding, replacing the Master’s decision or any previous appeal decision with its own decision.

The surviving spouse lodged a claim under section 2 of the Maintenance of Surviving Spouses Act, 27 of 1990 (the Act), in the deceased estate of her late husband.  His children from a previous marriage objected against the liquidation- and distribution account (L&D), in which the executor allowed the claim in the amount of R 4,468,519.24, on the basis that there were no facts proved covering the requirements listed in section 3 of the Act.  Both the North Gauteng High Court as well as the Full Bench of that court found that these requirements were not met, but surprisingly held that the surviving spouse was entitled to reasonable maintenance and refused to order the executor to remove the claim from the L&D.

The SCA held that both courts erred in that the court is called upon to determine whether the surviving spouse has submitted any evidence covering the requirements in section 3 of the Act to prove the surviving spouse’s reasonable maintenance needs.  In the absence of such facts in evidence, the inquiry stops there and the claim stand to be dismissed.

The SCA ordered the executor to remove the claim from the L&D.

Click here for an article by Prof Heinrich Schulze from the UNISA Law Faculty published in De Rebus.


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Published On: September 29th, 2017 / Categories: Estates / Tags: , , /

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