Claiming maintenance from a deceased estate

13 Nov, 2016 - 00:11 0 Views

The Sunday Mail

Slyvia Chirawu —
Death may not be the end of a deceased person’s legal obligation to look after a specified person. Take the case of Ruvimbo Chineka (60) and her husband Richard Chineka (67) (not real names) who sit forlornly at the funeral of their eldest daughter, Veneka, who passed away suddenly in Harare from diabetes complications.

As relatives, friends and colleagues pay tribute, the pain they feel is also filled with a sense of foreboding. Veneka was a successful businessperson. She owned a fleet of kombis and buses. She was into catering as well as real estate.

Growing up, Veneka saw how her parents, who were teachers, struggled to put her and seven other children through primary and secondary school. She vowed she would do all she could to make their lives comfortable once she started earning an income.

True to her word, she paid for construction of an eight-roomed house at their rural home. The house was fitted with solar power and a borehole was sunk. She put them on medical aid and every month, she sent money and groceries. She paid salaries for two people who looked after her parents.

With her death, Ruvimbo and Richard wondered what the future held in store for them as Veneka was the only surviving child out of the eight they had.
The situation Ruvimbo and Richard face confronts many parents who are looked after by their children and those children pass away.

In 1978, the Deceased Persons Family Maintenance Act (Chapter 6:03) was passed and has gone through several amendments since. The act provides for the maintenance of a certain category of people from the estate of a person who passes away.

This means that assets left by a deceased person can partly be used for maintenance purposes. The person who is entitled to maintenance is called a dependant. The Act defines such person in relation to the deceased as a surviving spouse, or a person who was divorced from the deceased at the time of their death but had a court order for maintenance.

When people divorce, the court may make an order for payment of post-divorce maintenance. The person in whose favour the maintenance order is made is entitled to claim maintenance from the deceased’s estate.

The other dependants are minor children (below the age of 18); a major child with a disability who was being maintained by the deceased and who is incapable of maintaining herself/himself; a parent who was being maintained by the deceased at the time of her or his death (such as Ruvimbo and Richard); any person who was being maintained by the deceased at the time of her or his death but limited to a person to whom the deceased had a legal duty to maintain (excludes relatives as there is no legal duty imposed upon anyone to look after relatives, and boyfriends/girlfriends); and any other person who was entitled to the payment of maintenance by the deceased at the time of her/his death.

A typical example is a wife married under customary law who is entitled to maintenance through provisions of the Maintenance Act. The Act defines a child to include an adopted child or a child born outside marriage and this is crucial because even though the Act was passed many years before the current Constitution, it recognises that there should not be any discrimination of a child based on the circumstances of their birth.

This is in keeping with Section 56(3) of the Constitution. For a child with disability or a parent, there is an added requirement that the deceased should have been making a substantial contribution in money or money’s worth towards the reasonable needs of that person. In Veneka’s case, she can be said to have been making a substantial contribution to her parent’s livelihood.

Anyone, therefore, who qualifies as a dependant can, therefore, make an application for maintenance from a deceased estate and the law states that this is from the net estate of the deceased.

This means all property of the deceased estate which is available to beneficiaries. Such an application should be made within three months from the date that an executor is given the document to enable her or him to start the process of administration. This is called a letter of administration.

The process is very elaborate but suffice to say that the Master is guided by the Act in handling such application. It is, therefore, encouraged for those who qualify to approach the office of the Master for assistance. The purpose is to create near normalcy for the dependants who qualify.

For instance, Ruvimbo and Richard — if not assisted by Veneka’s estate — may face very hard times. The law, however, further provides that there is no automatic award of maintenance.

The court will look at if the dependant really needs maintenance from the estate, the period for which such maintenance is required as it is not generally expected that a dependant should get maintenance for life; the ability of the dependant to look after herself/himself and if they should find work; the number of people to be maintained; the standard of living of the dependant during the life of the deceased for it is not expected that the dependant must now live a high standard of life when during the deceased’s lifetime they did not live such a lifestyle; and if the deceased did not make provision for maintenance for the dependant, reasons for such and whether the dependant was in any way responsible for that (for instance, the dependant could have been given money by the deceased already).

If there is a will the court looks at the interests of the beneficiaries named in the will. If there is no will the court looks at the interests of the beneficiaries as well, the size of the estate and any issues the court thinks are appropriate.

For a surviving spouse, in addition to the above considerations, the court looks at her/his age, the nature and length of the marriage, any contribution the surviving spouse made to the welfare of the family, and what the applicant would have got had the marriage ended by divorce and not death. If it is a child, the court also looks at the manner in which the child expected to be educated or trained.

Applying for maintenance from a deceased estate is not taken lightly and awards are not granted lightly. Awards that can be made include periodical payments, a lump sum payment, transfer of property, giving right of use of assets to applicant, and variation of the award made through a will or variation of award made where there is no will.

The last two are particularly important because it may mean that despite there being a will, an award of maintenance may change what will be given through the will and also where there is no will, the law relating to who gets what may also be varied so as to make provision for maintenance.

The Deceased Persons Family Maintenance Act is not well-known but if used correctly and if an estate has assets, persons such as Ruvimbo and Richard can be protected from destitution.
Slyvia Chirawu is a lawyer who writes in her personal capacity

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