In an effort to provide for their children, separated parents often find themselves battling in court for the finances necessary to feed, clothe, house and care for children they created when they were together.
But what happens when one of the parents is deceased?
A concerned parent sent us a mail with a complicated case, so we reached out to legal professionals for help.
I saw your articles on child maintenance. However I have not come across on articles relating to child maintenance against deceased estates and dealing with objections from heirs.
My son's father passed away 5 years ago, while he was a minor. He has now turned major and first year at tertiary. His father was supporting him from birth till his death and there was never a need for maintenance order.
The Executors of his estate has been refusing to pay interim maintenance until estate is finalised. While the heirs (two older children) are paid allowances.
The heirs and their now late mother has been objecting to the claim despite proven paternity, court order declaring paternity and two actuarial reports for expenses calculation (quantum).
We were not married with the deceased and he left my son out of his joint will with assets worth more than R50 million. 5 years down the line I'm still fighting and been told my son is now a major he must speak for himself.
My son's rights as a minor and son of deceased have been prejudiced and continue to be.
Where does the law that says all children are equal apply in this matter?
Where does the law and child's rights stand on fathers who knowingly leave their minor children born out of wedlock out their will, and have them subjected to the expensive child maintenance claim process that require actuarial calculations and attorneys?
As a single parent this whole process has affected me emotionally and financially ruined me.
Attorney Deborah Di Siena of Di Siena Attorneys provided us with a legal response to this convoluted query.
In terms of our law, the child of a deceased person, whether born of a marriage or out of wedlock, and even adopted children can lodge a claim for maintenance against the estate of their deceased parent.
The deceased estate does not have to be finalised before a claim for maintenance can be lodged. A child’s claim for maintenance ranks above all other claims against the estate of his deceased parent, including claims of heirs and legatees.
Your son who is now a major will have to personally lodge a claim against the deceased estate for maintenance.
As the mother, you may be entitled to lodge a claim against the estate for the arrear maintenance.
A claim for maintenance is lodged by giving notice in writing to the Master of the High Court and the executor of the estate. Maintenance can be claimed by way of an application, using form J341 (which is available here: Form J341, or at the Master’s office) with supported quotations and accounts.
With regards to your son being left out of the will, freedom of testation is one of the founding principles of the South African law of testate succession.
Testators are given freedom to direct how their estate should devolve and free rein to dispose of their assets as they deem fit.
As a result, effect must be given to the express wishes of the testator.
Deborah Di Siena
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