Child maintenance from ex-husband's estate

2009-03-06 00:00

Question. My daughter is divorced with two young children, aged 12 and 14. Their father has died, and in his will he has left everything he has to his new wife without making any provision for his children. Is there anything my daughter can do about this?

Answer. Your daughter, in her capacity as guardian of her ex-husband’s children is entitled to lodge a claim for maintenance against the estate.

I anticipate that when your daughter and her ex-husband got divorced, an order was made in respect of the amount of maintenance he was required to pay to her for the children.

It is also usual in divorce matters for the parties to have signed a settlement agreement which usually deals with maintenance, amongst other issues.

It would be prudent to have regard to the settlement agreement to determine if there are any provisions in the agreement which may not form part of the maintenance order, for example, provisions for annual escalation of the maintenance, or provision for the ex-husband to take life cover for the benefit of the children.

The maintenance order together with any additional provisions which may have been made in the settlement agreement would form the basis for a claim for maintenance on behalf of the children against your daughter’s ex-husband’s estate.

A claim for maintenance ranks concurrent with the other unsecured creditors’ claims against the estate (secured creditors are, for example, a bank in respect of a bond over immovable property or the South African Revenue Services in respect of the deceased’s tax liability). The maintenance claim must be satisfied before any legacies or inheritances are paid.

If you have a question regarding wills, power of attorney, estate planning, trusts, the adminis-tration of deceased estates, etc, please direct your questions to Margaret McCullough, J Leslie Smith & Company, and she will answer your questions on the next senior’s column.

E-mail or send your questions to Margaret McCullough, PO Box 297, Pietermaritzburg, 3201.

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