Van Rooyen Friedrich & others v Louw Smit NO & others

The appellants were adult children of the late Maartin Rudolph Friedrich from a previous marriage. The deceased died in September 2006, leaving a will appointing the appellants as his only heirs. The second respondent, Susanna Maria Friedrich, was married to the deceased on 26 April 2003 out of community of property without accrual. The marriage subsisted for approximately three years until the deceased's death. In November 2006, Mrs Friedrich filed a claim with the Executor against the deceased's estate in terms of section 2 of the Maintenance of Surviving Spouses Act 27 of 1990 in the amount of R8 454 760, later reduced to R4 468 519.24. The Executor allowed the claim and included it in the Liquidation and Distribution account. The appellants objected, alleging that Mrs Friedrich was employed as a bookkeeper, had received R139 293.46 from a life insurance policy, had purchased property for R695 000, was still relatively young at 46 years old, and had entered into a permanent life partnership with another man. The Master sustained the objection but indicated that the quantum should be determined by agreement or by court order.

• Whether the second respondent was entitled to reasonable maintenance from the deceased's estate in terms of sections 2 and 3 of the Maintenance of Surviving Spouses Act 27 of 1990
• What factors must be proved by a surviving spouse claiming maintenance from a deceased estate
• Whether the second respondent had discharged the onus of proving she was unable to maintain herself from her own means and earnings
• What evidence is required to establish entitlement to reasonable maintenance under the Maintenance of Surviving Spouses Act

The appeal was upheld. The second respondent was ordered to pay the costs, including the costs of the condonation application. The order of the Full Court was set aside and substituted with an order upholding the appeal to the Full Court with costs. The Master's decision dated 12 July 2010 was set aside and substituted with an order sustaining the objection lodged against the Liquidation and Distribution account and ordering the executor to amend the account by removing the claim of Susanna Maria Friedrich in toto. The second defendant was ordered to pay the costs of the action, including reserved costs. The second defendant's counterclaim was dismissed with costs.

A surviving spouse claiming maintenance from a deceased estate under sections 2 and 3 of the Maintenance of Surviving Spouses Act 27 of 1990 bears the onus of proving: (1) that they are in need of reasonable maintenance; and (2) that they are unable to maintain themselves from their own means and earnings. The claim must be supported by evidence addressing the factors in section 3 of the Act, including the claimant's existing and expected means, earning capacity, financial needs and obligations, the standard of living during the marriage, and the claimant's age. A surviving spouse who cannot show inability to maintain him or herself is not eligible for maintenance from the deceased's estate. Reasonable maintenance excludes extravagant demands. Under common law, a surviving spouse has no claim against the estate of the deceased spouse merely by reason of the marriage.

The court noted that the power conferred by section 35(10) of the Administration of Estates Act is an appeal in the wide sense, meaning the court can consider the matter afresh and may make any order it deems fit (citing Meyer v Iscor Pension Fund 2003 (2) SA 715 (SCA) at 725I). The court observed that the fact that Mrs Friedrich appeared to have been irresponsible with the amount the executor may have irregularly given her was not directly relevant to her actual entitlement to maintenance. While the court noted that it was not necessary to deal with Mrs Friedrich's counterclaim as it was dismissed by the trial court with no cross-appeal to the Full Court, the court's comments suggest that the counterclaim could not have succeeded given the failure to prove the underlying entitlement to maintenance.

This case provides important clarification on the requirements for a surviving spouse to claim maintenance from a deceased estate under the Maintenance of Surviving Spouses Act 27 of 1990. It emphasizes that a surviving spouse must prove inability to maintain themselves from their own means and earnings, and that reasonable maintenance excludes extravagant demands. The case establishes the evidentiary burden on a claimant and confirms that under South African common law, a surviving spouse has no automatic claim against the deceased's estate merely by reason of the marriage. The judgment clarifies that where a court finds no evidence has been led to establish entitlement to maintenance, the matter should end there and the court should not speculate about entitlement.