Background: The Maintenance Claim of a Surviving Spouse
In the recent judgment of Lynette Savvas v George Michael Savvas N.O and Others (1969/2024) [2025] ZAFSHC 115 (7 April 2025), the Free State High Court grappled with a surviving spouse’s application for interim maintenance from her late husband’s estate. The case centered on Mrs. Lynette Savvas, who sought payment of interim maintenance in the amount of R36,440.78 from the deceased estate of her late husband, Mr. Machel George Savvas, pending the finalisation of the estate’s administration.
The facts reveal that Mrs. Savvas and the deceased were married out of community of property with the inclusion of accrual on 18 October 1996. Their marriage had endured for twenty-five years at the time of Mr. Savvas’s death on 24 October 2021. No children were born from their marriage. Following his death, the deceased’s estate was registered with the Master of the High Court under estate number 100659/2021.
The first respondent, Mr. George Michael Savvas (the deceased’s son from a former marriage), was appointed as the executor of the deceased estate. The second respondent was the executor’s legal representative for the purpose of administering the deceased estate, while the third respondent was the Master of the Free State High Court.
Mr. Savvas died testate, leaving a will dated 7 February 2014. In terms of this will, he bequeathed his business (Ideal Processed Meats), motor car, Hi-Fi system, and firearms to his son. His daughter, Theano Savvas, received his share of a building known as T.G.S. Shopping Centre, while Mrs. Savvas was bequeathed the family home and its contents (excluding the Hi-Fi system, CDs, and LPs).
The application was premised on Mrs. Savvas’s claim that her husband’s death had left her financially destitute. She alleged that her claims for interim and final maintenance lodged with the executor in terms of sections 2 and 3 of the Maintenance of Surviving Spouses Act 27 of 1990 read with section 26(1A) of the Administration of Estates Act 66 of 1965 had been rejected without valid reason.
In her application, Mrs. Savvas contended that during their marriage, the deceased was an affluent businessman who owned shares in a business and earned rental income from his business premises. She claimed he had provided for an above-average lifestyle and was solely responsible for all household and living expenses despite her being employed as a hairdresser. After losing her employment in September 2021 due to the impact of the COVID-19 pandemic, she alleged that the deceased continued to maintain her financially until his death.
The application was opposed by the executor, who raised two points in limine: that the claim was premature as it had never been properly lodged with the executor before proceedings were launched, and that there was non-joinder of Ms. Theano Savvas as a co-heir and beneficiary. On the merits, the executor argued that Mrs. Savvas was not financially distressed and that the estate had a cash shortfall of R273,962.83, making it impossible to satisfy her maintenance claim.
This case brings into sharp focus the rights of surviving spouses to claim maintenance from deceased estates, particularly in circumstances where the estate may have insufficient funds to meet such claims.
The Legal Framework: Maintenance of Surviving Spouses Act and Administration of Estates Act
The judgment in the Savvas case provides a helpful outline of the legal framework governing maintenance claims by surviving spouses in South Africa. Justice Daniso highlighted that under South African common law, a surviving spouse has no claim for maintenance against the estate of a deceased spouse merely by reason of their marriage. This common law position was noted with reference to Botha v Botha 2009 (3) SA 89 (W).
It was precisely to address this gap in the law that the Maintenance of Surviving Spouses Act 27 of 1990 was promulgated. The object of this Act is “to provide the surviving spouse in certain circumstances with a claim for maintenance against the estate of the deceased spouse.” Section 2(1) of the Act establishes that if a marriage is dissolved by death, the survivor shall have a claim against the estate of the deceased spouse for the provision of reasonable maintenance needs until death or remarriage, insofar as the survivor is unable to provide for these needs from their own means and earnings.
The Act provides specific mechanisms for the handling of such claims. Section 2(3)(a) stipulates that the proof and disposal of a maintenance claim by the survivor shall be dealt with in accordance with the provisions of the Administration of Estates Act 66 of 1965. Section 2(3)(b) establishes that a maintenance claim by a surviving spouse has the same order of preference as a claim for maintenance of a dependent child, meaning it ranks ahead of claims by heirs and legatees.
Significantly for this case, section 2(3)(d) empowers the executor of a deceased estate to enter into an agreement with the survivor and the heirs and legatees having an interest in the agreement for the settlement of the claim. This may include the creation of a trust, transfer of assets, or imposition of obligations on heirs or legatees.
The court also considered section 26(1A) of the Administration of Estates Act, which permits the release of funds from a deceased estate to cater for the subsistence of the deceased’s family before the Liquidation and Distribution account is opened for inspection.
In addressing the executor’s point in limine that Mrs. Savvas’s claim was premature as it had not been properly lodged before court proceedings were launched, Justice Daniso referred to Nedbank Ltd v Steyn and Others 2016 (2) SA 416 (SCA). The Steyn case established that failing to follow the claims procedures contemplated in sections 29, 32, 33, and 35 of the Administration of Estates Act does not deprive a creditor of their common-law right to institute a claim against a deceased estate.
The judgment also touched on the evidentiary burden in such claims. With reference to Friedrich and Others v Smit NO and Others 2017 (4) SA 144 (SCA), the court noted that section 3 of the Maintenance of Surviving Spouses Act places the onus to adduce evidence to establish the factors relevant to a maintenance claim squarely on the applicant. These factors include the amount in the estate available for distribution, the existing and expected means and earning capacity of the survivor, and the standard of living during the marriage.
This legal framework is crucial for understanding how courts approach maintenance claims by surviving spouses, particularly in circumstances where there may be tensions between such claims and the provisions of a will or the interests of other heirs and beneficiaries.
Key Issues in Dispute: Interim Maintenance and Estate Shortfall
The Savvas case revolved around several contentious issues regarding the surviving spouse’s claim for interim maintenance and the financial capacity of the deceased estate to meet such claims.
Central to Mrs. Savvas’s application was her assertion that during their 25-year marriage, the deceased had provided an affluent lifestyle for them both. She claimed that her late husband had been a successful businessman who owned shares in Ideal Processed Meats and earned rental income from the T.G.S. Shopping Centre property. In her founding affidavit, Mrs. Savvas contended that despite her own employment as a hairdresser earning between R7,000 and R10,000 monthly, her late husband had been solely responsible for their household and living expenses, with her income being used primarily for personal expenses.
A significant point of contention emerged regarding Mrs. Savvas’s financial situation after her husband’s death. She initially claimed to be financially destitute, stating that she had lost her employment in September 2021 due to the COVID-19 pandemic. However, her own evidence later revealed that she had been self-employed since that same month, operating a hairdressing salon and earning a monthly income of R28,608.84.
The executor vehemently disputed Mrs. Savvas’s claims of financial distress. He argued that her bank statements for the period December 2021 to March 2024 showed available balances of R62,059.33 and later R92,319.56, suggesting she had sufficient means to meet her reasonable maintenance needs. The executor also pointed to an undisclosed investment totalling R237,379.35 mentioned in the actuarial report but not addressed in Mrs. Savvas’s papers.
Another critical issue was the actual amount being claimed by Mrs. Savvas. Her notice of motion sought R36,440.78, while her founding affidavit calculated the claim at R28,874.32. During argument, this was further reduced to R11,074.32. The court noted these inconsistencies with concern, especially as certain claimed expenses included R15,000 for rental despite Mrs. Savvas still residing in the family home, and rates and taxes of R2,800 which were being paid by the executor.
Perhaps the most significant dispute centred on the estate’s financial capacity to meet any maintenance claim. The executor maintained that the first and final Liquidation and Distribution account lodged on 20 May 2024 showed a cash shortfall of R273,962.83, making it impossible to satisfy Mrs. Savvas’s “exorbitant lump claim of over R8 million” or even the interim maintenance sought in the application.
Mrs. Savvas countered by suggesting that the estate inventories did not reflect the correct value of all assets, specifically mentioning two Rolex watches, components of the Hi-Fi system, and rental income from the T.G.S. building. She further argued that a shortfall was not a valid reason for rejecting her claim, as maintenance claims rank in preference before any claim for distribution to heirs and legatees. Her position was that if necessary, the executor should realise assets of the deceased estate, including those which had been bequeathed, to rectify any cash shortfall.
The executor characterised Mrs. Savvas’s application as “simply an inheritance claim cloaked in a maintenance claim,” suggesting she was aggrieved by the provisions and bequests made in her late husband’s will rather than genuinely in need of maintenance. This framing of the dispute highlights the tension between respecting a testator’s wishes and protecting the interests of a surviving spouse – a recurring theme in cases involving the Maintenance of Surviving Spouses Act.
The Court’s Assessment of Financial Means and Needs
Justice Daniso’s analysis focused sharply on the evidence presented regarding Mrs. Savvas’s financial circumstances and the estate’s capacity to meet her maintenance claim. The court’s approach demonstrated the rigorous scrutiny applied to such applications, particularly where disputed facts arise.
When evaluating Mrs. Savvas’s claim of financial destitution, the court found significant inconsistencies that undermined her position. Justice Daniso was particularly critical of what was termed “blatantly false” evidence regarding employment status. The judgment highlighted that Mrs. Savvas’s own version confirmed she had been self-employed since September 2021, the same month she claimed her previous employment was terminated. This contradicted her application’s premise that she had been left without means following her husband’s death.
The court placed considerable weight on Mrs. Savvas’s bank statements, which reflected substantial balances. Justice Daniso noted that “barely two months after deceased’s passing the applicant had an available balance of R62,059.33” and by March 2024, a month before launching proceedings, this had increased to R92,319.56. These amounts were “way more than her monthly maintenance needs,” directly contradicting claims of financial insufficiency.
The judgment scrutinised the quantification of Mrs. Savvas’s maintenance needs with equal rigour. The court took issue with the inconsistent amounts claimed: R36,440.78 in the notice of motion, R28,874.32 in the founding affidavit, and a further reduction to R11,074.32 during argument. Beyond these inconsistencies, Justice Daniso stressed the absence of documentary evidence substantiating the expenses claimed, noting that “there is no evidence to substantiate the expenses claimed.”
The court’s approach reflected the principle established in the Friedrich case that the onus rests with the applicant to prove the factors relevant to a maintenance claim. In this instance, Mrs. Savvas failed to discharge this burden, particularly regarding her “existing and expected means, earning capacity, financial needs and obligations” as required by section 3(b) of the Maintenance of Surviving Spouses Act.
Regarding the estate’s financial capacity, the court accepted the executor’s evidence of a cash shortfall of R273,962.83, noting this had “not been gainsaid by evidence to the contrary.” While Mrs. Savvas had alleged that certain assets were not properly accounted for in the estate inventories, the court implicitly found these allegations insufficiently substantiated to override the executor’s evidence.
The court’s assessment also touched implicitly on the standard of living during the marriage. Mrs. Savvas had claimed her husband provided an “above average lifestyle,” yet the executor contended “the deceased did not have abundance of money” and “lived on debt.” With limited evidence to resolve this dispute, the court appeared to place more weight on the contemporaneous financial evidence of both the estate and Mrs. Savvas’s current means.
Justice Daniso’s finding that “no proper case has been made out” reflected the court’s holistic assessment of all these financial factors. The judgment demonstrates that maintenance claims by surviving spouses must be supported by comprehensive, consistent, and credible evidence of both need and the estate’s capacity to meet such needs. It also underscores that courts will scrutinise carefully any suggestion that a maintenance claim is being used as a vehicle to challenge the substantive provisions of a valid will.
Implications for Surviving Spouses’ Maintenance Claims in South Africa
The Savvas judgment offers valuable insights into how courts approach maintenance claims by surviving spouses and carries significant implications for future litigants in similar positions. Several important principles emerge that will likely guide future applications.
Firstly, the judgment reinforces that while the Maintenance of Surviving Spouses Act creates a statutory exception to the common law position that surviving spouses have no inherent right to maintenance, this does not create an automatic entitlement. The onus remains firmly on the applicant to prove both their reasonable maintenance needs and their inability to provide these from their own means and earnings. The court’s dismissal of Mrs. Savvas’s application due to her failure to discharge this evidentiary burden serves as a stark reminder of this principle.
The case also clarifies the procedural aspects of bringing such claims. Justice Daniso’s rejection of the executor’s point in limine that the application was premature confirms that surviving spouses retain their common law right to approach a court directly, even if they have not perfectly adhered to the claims procedures in the Administration of Estates Act. This aligns with the Steyn case’s principle that failing to follow these procedures does not deprive creditors of their right to institute claims against deceased estates.
Similarly, the court’s dismissal of the non-joinder point indicates that heirs and beneficiaries need not necessarily be joined in applications for interim maintenance. Justice Daniso noted that orders made under section 26(1A) of the Administration of Estates Act are directed solely at the executor, and the Master’s consent provides sufficient protection for heirs’ interests.
The judgment also addresses the tension between maintenance claims and the financial capacity of estates. While section 2(3)(b) of the Maintenance of Surviving Spouses Act establishes that maintenance claims rank ahead of claims by heirs and legatees, the Savvas case demonstrates that courts will consider practical reality. Where an estate faces genuine financial constraints, these may legitimately limit the capacity to meet maintenance claims. The court’s acceptance of the executor’s evidence regarding the estate’s shortfall illustrates this pragmatic approach.
Legal practitioners should note the court’s detailed scrutiny of the applicant’s financial position. Future applicants must be prepared for rigorous examination of their bank statements, investments, and other financial records. Inconsistencies in claimed amounts, as occurred in this case, will likely damage an applicant’s credibility. This case also underscores the importance of providing documentary evidence to substantiate claimed expenses, as bare assertions will not suffice.
The judgment implies a certain judicial skepticism toward claims that might be perceived as attempts to circumvent testamentary provisions. The executor’s characterisation of Mrs. Savvas’s application as “an inheritance claim cloaked in a maintenance claim” seems to have resonated with the court. This suggests courts may be wary of maintenance applications that appear motivated by dissatisfaction with a valid will rather than genuine need.
Finally, the Savvas case highlights the practical challenges of balancing competing interests in estate administration: respecting the deceased’s testamentary freedom while protecting vulnerable surviving spouses. The Maintenance of Surviving Spouses Act was intended to provide a safety net for those who might otherwise be left destitute, not as a mechanism to redistribute estate assets contrary to testamentary provisions where no genuine need exists.
For legal advisors, the key lesson is clear: maintenance claims must be honestly grounded in demonstrable need, meticulously quantified, supported by comprehensive documentation, and cognisant of the estate’s actual financial capacity. Anything less is likely to meet the same fate as Mrs. Savvas’s application – dismissal with costs.
Questions and Answers
What was the court’s decision in the Savvas case? In Savvas v Savvas N.O and Others, Justice Daniso dismissed the application for interim maintenance with costs, finding that Mrs. Savvas had failed to make out a proper case for the granting of the order sought. The court was not persuaded that she lacked sufficient income to meet her reasonable maintenance needs.
What is the legal basis for a surviving spouse’s claim for maintenance in South Africa? The legal basis is found in the Maintenance of Surviving Spouses Act 27 of 1990. This Act created a statutory exception to the common law position (confirmed in the Botha case) that a surviving spouse has no claim for maintenance against a deceased spouse’s estate merely by reason of their marriage. Section 2(1) of the Act provides that if a marriage is dissolved by death, the survivor shall have a claim against the estate for reasonable maintenance needs until death or remarriage, insofar as they cannot provide for these from their own means and earnings.
What factors must courts consider when determining reasonable maintenance needs for a surviving spouse? According to section 3 of the Maintenance of Surviving Spouses Act, courts must consider: the amount in the estate available for distribution to heirs and legatees; the existing and expected means, earning capacity, financial needs and obligations of the survivor and during the subsistence of the marriage; and the standard of living of the survivor during the marriage and their age at the death of the deceased spouse.
Who bears the onus of proving the factors relevant to a maintenance claim? The judgment, citing the Friedrich case, confirms that section 3 of the Maintenance of Surviving Spouses Act places the onus squarely on the applicant to adduce evidence establishing the relevant factors for a maintenance claim. This includes proving both their reasonable maintenance needs and their inability to provide these from their own means and earnings.
Can an executor reject a maintenance claim if the estate has insufficient funds? Yes, but with qualifications. While maintenance claims rank in preference before claims for distribution to heirs and legatees, the Savvas judgment suggests that genuine financial constraints in an estate may legitimately limit its capacity to meet maintenance claims. However, before rejecting a claim outright, an executor should consider whether assets bequeathed to heirs could be realised to satisfy the maintenance claim.
Must a maintenance claim be lodged with the executor before court proceedings can be instituted? No. Justice Daniso, relying on the Steyn case, held that failing to follow the claims procedures contemplated in the Administration of Estates Act does not deprive a claimant of their common-law right to institute a claim against the deceased estate. While proper lodgement with the executor is the preferred approach, its absence does not bar court proceedings.
Is it necessary to join all heirs and beneficiaries in an application for interim maintenance? No. The court in Savvas dismissed the non-joinder point, finding that the joinder of Ms. Theano Savvas (a co-heir and beneficiary) was not material to the proceedings. Justice Daniso noted that an order under section 26(1A) of the Administration of Estates Act is directed solely at the executor, and the Master’s consent requirement provides sufficient protection for heirs’ interests.
What is the significance of section 26(1A) of the Administration of Estates Act in maintenance claims? Section 26(1A) deals with the executor’s obligation to release funds from a deceased estate to cater for the subsistence of the deceased’s family before the Liquidation and Distribution account is opened for inspection. It provides a mechanism for surviving spouses to receive interim maintenance during the often lengthy process of estate administration, subject to the Master’s consent.
How does the court approach inconsistencies in the quantification of maintenance claims? The Savvas judgment demonstrates that courts will view inconsistencies in claimed amounts with considerable scepticism. Justice Daniso highlighted the applicant’s varying claims (R36,440.78 in the notice of motion, R28,874.32 in the founding affidavit, and a further reduction to R11,074.32 during argument) as problematic, suggesting these inconsistencies undermined her credibility.
What evidence is required to substantiate expenses in a maintenance claim? The judgment indicates that bare assertions of expenses are insufficient. The court was critical of Mrs. Savvas’s failure to provide documentary proof for her alleged expenses, suggesting that bank statements, invoices, receipts, or other financial records should be provided to substantiate each claimed expense. This is particularly important for unusual or substantial expense items.
Can a maintenance claim be used to challenge the provisions of a valid will? While not explicitly stated, the Savvas judgment implies judicial scepticism toward claims that might be perceived as attempts to circumvent testamentary provisions. The court appeared receptive to the executor’s characterisation of the application as “an inheritance claim cloaked in a maintenance claim,” suggesting courts will be wary of applications motivated by dissatisfaction with a valid will rather than genuine need.
How does the court assess claims of financial destitution by a surviving spouse? The Savvas case shows that courts will scrutinise such claims rigorously, examining bank statements, investments, and other financial records. Justice Daniso placed considerable weight on Mrs. Savvas’s bank statements showing substantial balances, which directly contradicted her claims of financial insufficiency. Claims about employment status and income will also be closely examined for consistency and truthfulness.
What is the ranking of a maintenance claim in relation to other claims against a deceased estate? Section 2(3)(b) of the Maintenance of Surviving Spouses Act establishes that a maintenance claim by a surviving spouse has the same order of preference as a claim for maintenance of a dependent child. This means it ranks ahead of claims by heirs and legatees, though it would rank after secured creditors and estate administration expenses.
Can an executor enter into an agreement with a surviving spouse regarding maintenance without court involvement? Yes. Section 2(3)(d) of the Maintenance of Surviving Spouses Act empowers the executor to enter into an agreement with the survivor and the heirs and legatees for the settlement of a maintenance claim. This may include creating a trust, transferring assets, or imposing obligations on heirs or legatees, potentially avoiding the need for litigation.
What are the cost implications of unsuccessful maintenance applications? The Savvas judgment followed the general principle that costs follow the result, ordering the unsuccessful applicant to pay costs. Justice Daniso found “no reason why the costs should not follow the result,” suggesting that in the absence of special circumstances, unsuccessful applicants in maintenance claims should expect to bear the costs of their application.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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