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Does a parent’s obligation to maintain their minor child die with them?


By virtue of becoming a mother or a father, a legal obligation in respect of maintaining your child arises in our law. This duty to maintain does not end or expire in the unfortunate case where a parent of a minor child passes away. A parents’ obligation to maintain his/her minor child may be perpetual in the sense that it does not automatically terminate at the death of either one or both parents.


Therefore, the deceased estate of the relevant deceased parent can be rendered liable in respect of the child’s maintenance. Same rings true irrespective of whether the parents of the child are married or divorced. In terms of section 15(3)(iii) of the Maintenance Act, 99 of 1998 (“the Maintenance Act”) the duty to support a child exists irrespective of whether a child is born in or out of wedlock or and whether the parent has access or is denied access to the child.


It is of vital importance that as at the date that the executor is in possession of the letter of executorship in respect of the deceased estate of the parent, the executor steps into the shoes of the deceased parent. It therefore follows that any existing maintenance order in place against the deceased parent and the liability associated therewith will accordingly be binding on the deceased estate. However, the liability to maintain your child as a parent arises irrespective of a maintenance order granted.


In terms of ranking, the claims of creditors of the deceased estate will be favoured over the rest. However, a child’s claim for maintenance ranks above all other claims against the estate of his deceased parent, including claims of heirs and legatees. The claims of creditors however, still have a higher ranking than the maintenance of a child as the child’s maintenance claim is a debt sui generis (i.e. a debt of its own kind). The deceased estate would therefore be bound to continue the duty of support in respect of the child on behalf of the deceased.


Due to administrative aspects and delays associated with the Master’s Office, the finalisation of a deceased estate may take a number of months. In this regard, it is important to note that the deceased estate does not have to be finalised before a claim for maintenance of a child can be lodged. In terms of the Administration of Estates Act 66 of 1965 (“the Act”), a claim for maintenance in respect of a child is lodged by giving written notice setting out the required maintenance of the child to both the Master and the executor of the deceased estate.


In terms of section 26(1A) of the Act, the executor may before the account has lain open for inspection and with the consent of the Master release such amount of money and such property out of the estate as in the executor's opinion are sufficient to provide for the subsistence of the deceased's family or household. The Court in N B v Maintenance Officer, Butterworth & Others 2014 (6) SA 116 ECM held that section 26(1A) of the Act has a specific purpose to alleviate family hardship pending the winding up of the deceased estate.


Maintenance of a minor child and the deceased estate’s liability in respect of same has been a contentious issue faced by our Courts. Situations wherein the executor of a deceased estate refuses to pay maintenance for a minor child or similar issues can arise. In these situations, further steps may be necessitated including to approach the Master of the High Court, the Maintenance Court or the High Court for resolution.


Our Courts have long debated the issue of jurisdiction of the Maintenance Court in respect of an executor of a deceased estate. In essence, jurisdiction has previously been challenged on the basis that an executor does not constitute a ‘person’ as defined in the Maintenance Act. The Supreme Court of Appeal in Du Toit NO v Thomas NO and Others (2016) SCA 94, examined this jurisdictional issue and held that the provisions of the Maintenance Act shall apply in respect of the legal duty of any person to maintain any other person, irrespective of the nature of the relationship between those persons giving rise to the duty. Further, that the Maintenance Act shall not be interpreted so as to derogate from the law relating to the liability of persons to maintain other persons on behalf of the minor child. In this case, a maintenance order was granted in the Maintenance Court against the executor with costs which was subsequently taken on appeal without success.


Our Courts have previously held that section 2(1) of the Maintenance Act make it clear that the Maintenance Act is intended to cast a wide jurisdictional net and that this extends well beyond relationships by blood. It therefore covers an executor acting in accordance with section 26(1A) of the Act. Personal liability in respect of an executor of a deceased estate for, inter alia, costs associated with unnecessary litigation, or a breach of fiduciary duties may arise in certain circumstances. There are various mechanisms available in terms of the Act including to apply to the Master for the removal of the executor in terms of section 54 of the Act.


Should you have any inquiries relating to the maintenance of your minor child in respect of a deceased estate and any steps relating thereto – please reach out to our team at Spence Attorneys at our Johannesburg or Cape Town branch.

(info@spencelaw.co.za)


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