A life insurance policy valued at approximately R2 million was taken out in 1989 in respect of Mr P Brink. In 1990, he ceded the policy to his wife, Mrs A Brink (the applicant). Mr Brink died on 9 April 1994. Mr A Kitshoff (the respondent) was appointed as executor of the estate and on 23 May 1994 sent a notice to creditors that the estate was insolvent. In terms of section 44 of the Insurance Act, 27 of 1943, the executor demanded that the insurer pay into the estate all but R30,000 of the proceeds of the life insurance policy. When the insurer refused, the executor launched an application in the Transvaal Provincial Division compelling payment. Mrs Brink counter-applied seeking rectification of the policy and challenged the constitutionality of section 44. The insurance policy was taken out and ceded, and Mr Brink died, before the Constitution came into force on 27 April 1994. A concursus creditorum was initiated on 23 May 1994 through a section 34 notice under the Administration of Estates Act.