Oshry NO and Another v Feldman

Marjorie Pearl Feldman (respondent), aged 60, married Lionel Maurice Feldman (deceased), aged 70, on 27 January 1987 in a marriage out of community of property. Both had adult children from previous marriages. They lived together for 18 years until the deceased's death on 3 May 2005. During the marriage, the respondent initially worked as an estate agent until retirement at age 75. They shared expenses and lived in the deceased's Hyde Park flat. As their financial situation deteriorated, the deceased requested the respondent seek assistance from her sons. The deceased's will made inadequate provision for the respondent, bequeathing her only R150,000 and expressing a desire that she remain in the flat (which was not part of his estate). The deceased's children were appointed executors. After his death, the respondent claimed maintenance from the estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990 and payment of R50,000 allegedly donated to her. The estate was valued at approximately R1,313,367, but this included insurance policies worth about R820,000 with nominated beneficiaries (the deceased's children). The respondent's sons had been supporting her financially, contributing on average R18,468 per month in the 18 months before trial.

• Whether a surviving spouse has established a claim for maintenance against the deceased estate under the Maintenance of Surviving Spouses Act 27 of 1990
• Whether contributions from the surviving spouse's children constitute 'own means' or 'existing and expected means' that would disqualify a maintenance claim
• Whether a lump sum maintenance award is competent under the Maintenance of Surviving Spouses Act
• Whether proceeds of insurance policies with nominated beneficiaries form part of the deceased estate available for distribution
• Whether the deceased's written undertaking to donate R50,000 was discharged during his lifetime
• What factors must be considered in determining 'reasonable maintenance needs' under section 3 of the Act
• Whether costs should be awarded against executors personally (de bonis propriis) and on what scale

1. The appeal was upheld only to the limited extent that insurance policy proceeds with nominated beneficiaries were excluded from the estate's distributable assets. 2. The order of the high court was set aside and substituted with an order: (a) authorizing and directing the executors to recognize the respondent's maintenance claim under sections 2(1) and 3 of the Act; (b) directing payment of a lump sum equal to the net value of the estate after payment of other creditors' claims, funeral expenses, administration costs and executors' fees; (c) directing payment of R50,000 with interest at 15.5% per annum from 6 July 2006 to date of payment; (d) directing payment of the respondent's costs of suit including qualifying fees of the actuary Mr I G Hunter and Dr L M Kernhoff. 3. The cross-appeal was upheld. 4. The executors were ordered jointly and severally to pay the respondent's costs of appeal de bonis propriis (personally) on an attorney and client scale, including costs of two counsel. 5. The executors were ordered to pay the cross-appellant's costs de bonis propriis on an attorney and client scale, including costs of two counsel.

1. Under the Maintenance of Surviving Spouses Act 27 of 1990, the primary obligation of spousal support continues after death through the deceased's estate, provided the surviving spouse cannot meet reasonable maintenance needs from own means and earnings (section 2(1)). 2. 'Own means' as defined in section 1 of the Act includes financial benefits accruing to the survivor from matrimonial property, succession, or otherwise at the deceased's death, but does not extend to voluntary contributions from third parties, including the surviving spouse's children. To interpret it otherwise would defeat the Act's purpose and undermine dignity. 3. Lump sum maintenance payments are competent under the Maintenance of Surviving Spouses Act. The Maintenance Act 99 of 1998 changed the definition of 'maintenance order' from requiring 'periodical payment' to 'including the periodical payment', thereby permitting lump sum awards. 4. Proceeds of insurance policies with nominated beneficiaries (stipulatio alteri) do not form part of the deceased's estate available for distribution to creditors, heirs, or for maintenance claims, absent revocation of the nomination during the deceased's lifetime (applying Pieterse v Shrosbree 2005 (1) SA 309 (SCA)). 5. In determining reasonable maintenance needs under section 3 of the Act, a court must consider: (a) the amount in the estate available for distribution; (b) the survivor's existing and expected means, earning capacity, financial needs and obligations; (c) the standard of living during the marriage; (d) the survivor's age at death of the spouse; and (e) any other relevant factors in the totality of circumstances. 6. When determining whether a lump sum or periodic payment is appropriate, courts should consider factors including the claimant's age, the size and liquidity of the estate, administrative burdens and costs of ongoing payments, the interests of heirs and legatees, and the practical circumstances of the case.

The court made several important non-binding observations: (1) The case demonstrates how costly litigation can become when common sense is abandoned and issues are not clearly defined at the outset. (2) Section 2(3)(d) of the Act specifically provides for negotiated settlements between executors, survivors, and heirs/legatees, and such settlements should be 'the order of the day' where common sense prevails. (3) Executors who are also beneficiaries must be alert not to be motivated by selfish personal interest but to act in the interests of the estate. (4) The construction of provisions of the Maintenance of Surviving Spouses Act should accord with constitutional norms and values, particularly the protection of dignity of vulnerable persons. (5) The court expressed regret that the elderly and vulnerable respondent was subjected to protracted litigation because issues were not properly defined, noting that both parties were 'the poorer for it, materially as well as in human currency.' (6) Personal antagonisms between parties can stultify mature reflection and judgment in estate litigation. (7) While policy considerations regarding uncertainty in lump sum calculations (such as life expectancy, remarriage, changing circumstances) are legitimate concerns, they are not insurmountable - courts regularly deal with similar uncertainties in delictual claims for loss of support. (8) The fact that executors litigate at the estate's expense rather than bearing personal risk can contribute to unreasonable litigation positions.

This case is significant in South African family law and succession law for several reasons: (1) It clarifies that lump sum maintenance awards are competent under the Maintenance of Surviving Spouses Act 27 of 1990, correcting earlier jurisprudence based on the superseded Maintenance Act 23 of 1963. (2) It establishes that voluntary contributions from a surviving spouse's children do not constitute 'own means' or 'existing and expected means' that would disqualify a maintenance claim - the primary duty remains with the deceased's estate. (3) It confirms that insurance policy proceeds with nominated beneficiaries do not form part of the deceased estate available for maintenance claims or distribution to heirs. (4) It demonstrates the application of constitutional values (particularly dignity) in interpreting maintenance legislation. (5) It provides guidance on factors relevant to determining 'reasonable maintenance needs' under section 3 of the Act. (6) It illustrates when executors may be held personally liable for costs (de bonis propriis) on a punitive scale when they act obstructively or allow personal interests to override their fiduciary duties. The case emphasizes the importance of attempting negotiated settlements under section 2(3)(d) of the Act to avoid wasteful litigation that depletes estate assets.