Oshry v Feldman

The respondent, Marjorie Pearl Feldman, was married out of community of property to the deceased, Lionel Maurice Feldman, for 18 years until his death in 2005. The deceased made inadequate provision for her in his will, leaving her a legacy of R150 000 and expressing a wish that she be allowed to remain in a flat which did not form part of his estate. After his death, the respondent’s adult sons supported her financially. She instituted action against the deceased’s estate, administered by the appellants as executors, claiming maintenance under the Maintenance of Surviving Spouses Act 27 of 1990 and payment of R50 000 allegedly promised to her as a donation during the deceased’s lifetime. The High Court ordered periodical maintenance and payment of the R50 000, but held that a lump sum maintenance award was not competent. Both parties appealed.

The appeal was upheld only to a limited extent and the cross-appeal succeeded in part. The High Court order was set aside and replaced with an order directing the executors to recognise the respondent’s maintenance claim under the Act and to pay her a lump sum equal to the net value of the estate after specified deductions, together with payment of R50 000 plus interest. The executors were ordered to pay costs on an attorney-and-client scale de bonis propriis.

The case is a leading authority on the interpretation of the Maintenance of Surviving Spouses Act. It confirms that voluntary financial assistance from children does not relieve a deceased estate of its primary statutory duty to maintain a surviving spouse, clarifies the meaning of ‘own means’, and authoritatively establishes that lump sum maintenance awards are competent under the Act.