The short answer
He should inform the Master of the High Court that the whole family was not included in the nomination of who should wind up the estate.
The whole question
Dear Athalie
My cousin is struggling to claim his late father’s estate because his father’s “wife” already claimed it and listed my cousin as her child, which is not true. She submitted fraudulent documents to the Education Department (my cousin’s father was a teacher).
My cousin is also struggling to access funds from his paternal grandfather’s insurance policy in which he is named amongst others, as a beneficiary, but the person claiming to be his father’s wife is refusing to bring her children to the meeting requested by the insurance company, where all beneficiaries should be present. We assume this is because of the fraudulent documents she submitted to the Education Department.
The man that my cousin hired to investigate the case told him that he cannot continue as his life might be in danger. My cousin’s uncle who was also helping him said that he received threats from people pretending to be the police. Unfortunately, he passed away a few weeks ago.
I am trying to help my cousin but he is close to giving up. He has gone so far as changing his name because he can’t find work due to others using his ID for fraudulent activities. Life has been difficult for my cousin, but we cannot let corrupt people win.
The long answer
This is a painful, complicated and difficult business, but before getting into the complexities, I would like to say that I strongly endorse your feeling that your cousin should not give up on this case. It is precisely this kind of intimidation that backs up the corruption and lies that are undermining social justice in our country. Every time, someone gives up under threat, it encourages the corrupt to continue on their path, and puts another nail in the coffin of freedom and democracy. This is not to say that the threats are not real and dangerous, so one has to be very careful in choosing a way forward.
Let’s start with the deceased estate: if the father left a will nominating the woman who claims to be his wife as his beneficiary, and did not nominate your cousin and his mother and sister, their only recourse would be to claim maintenance for your cousin and his sister if they were under 18 years of age. If their mother had lived apart from and independently of your cousin’s father for years and could not prove that she was financially dependent on him, she would find it difficult to claim maintenance under the Maintenance of Surviving Spouses Act.
If your cousin’s mother had not been married to him but was living with him as his permanent life partner when he died, she would be regarded as his wife for the purpose of inheriting. This is since the 31 December 2021 judgement of the Constitutional Court in the Bwanya case. In that case, the Constitutional Court ruled that discriminating against a partner on the basis of marriage was unconstitutional and that permanent life partnerships must be respected and entitled to legal protection. So, in the case of both the Maintenance of Surviving Spouses Act and Section 1(1) of the Intestate Succession Act, the definition of "spouse" and "marriage" must be read to include "the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate".
Both Acts had to be amended within 18 months of the judgement but both would be read as if they had already been amended.
If your cousin’s father died without making a will, the Intestate Succession Act would apply. The deceased estate would be inherited first by the wife/wives and then by descendants. Each wife should inherit at least R250,000, and the remainder of the estate would be distributed equally among the father’s descendants. If the estate was not large enough to enable each wife to receive R250,000, the estate would be divided equally between the wives.
In terms of the 2021 constitutional amendments to the Intestate Succession Act, if the woman claiming to be your cousin’s father’s wife had been living with him as his permanent life partner at the time of his death, she would qualify to inherit, along with any children born of their partnership as well as your cousin and his sister.
A death must be reported to the Office of the Master of the High Court or Magistrate’s Court in the region where the deceased lived, within 14 days, along with the following documents which can be obtained from https://www.justice.gov.za/master/forms.html):
Completed death notice (form J294);
Original or certified copy of the death certificate;
Original or certified copy of a marriage certificate (if applicable);
All original wills or documents intended as such (if any);
Next-of-kin affidavit if the deceased did not leave a valid will (form J192);
Completed inventory form (form J243);
List of creditors of deceased (if applicable);
Nominations by the heirs for the appointment of a Master’s representative in the case of an intestate estate or where no executor has been nominated in the will or the nominated executor declines the appointment. (my emphasis);
Undertaking and acceptance of Master’s directions (form J155);
Declaration confirming that the estate has not already been reported to another Master’s Office or Magistrates Court.
If a person dies without a will, the family members must nominate someone – and sign their names to this nomination – to be the representative with the letter of authority (J170) in terms of Section 18(3) of the Administration of Estates Act. (If the estate is valued below R250,000, a letter of authority is issued by the Master. If the estate is valued above R250,000, an executor must be appointed.)
The executor or person carrying the letter of authority must wind up the estate, which means paying all the debts and seeing that the rightful heirs inherit. The representative with the letter of authority (or the executor) has no right to benefit from the estate personally. If your cousin’s father died without a will, then clearly your cousin and his mother and sister were excluded from nominating someone to be the executor or have the letter of authority, and that is unlawful. So, if that was the case, the Master needs to be informed both that the whole family was not included in the nomination and that your cousin was falsely declared to be the child of the person who has already made a claim on the estate. Your cousin would need to take all the documents like certified copies of IDs, birth certificates and whatever other documents prove his identity to the Master of the High Court.
If he is not happy with the Master’s response, he could consult Legal Aid for assistance. Legal Aid is a means-tested government organisation that must help people who can’t afford a lawyer:
Legal Aid Advice Line (Toll-free): 0800 110 110
Legal Aid Ethics Hotline: 0800 153 728
Please-Call-Me number: 079 835 7179
Your cousin could also lay a complaint with the Chief Master:
Regarding your problem with claiming from the Education Department:
As a teacher, your cousin’s father was likely to have been a member of the Government Employees Pension Fund (GEPF). A member of the GEPF can nominate whomever they want to be a beneficiary of their pension fund, but the GEPF has the power to include beneficiaries that should have been included, like dependants.
Your cousin should contact both the Education Department and the GEPF and asking to see them to discuss the documents that the woman claiming to be the wife submitted to the Education Department, including the fraudulent claim that he is her son. Again, he would need to take all the documents he has like certified copies of IDs, birth certificates etc.
The National Department of Education has a telephone hotline 0800 202 933 (toll-free) for fraud.
This is the toll-free number of the GEPF: 0800 117 669
This is their email: enquiries @gepf.co.za
This is the GEPF Fraud Helpline: 0800 203 900
Moving to the insurance policy of the paternal grandfather:
I think your cousin should seek an appointment with the Human Resources or Admin of the insurance company, and ask what can be done if the "wife" refuses to present her children at the meeting where all the beneficiaries are required. Perhaps the insurance company can explain what they have done to secure the attendance of the children – have they followed it up? Sent a warning? Is there a cutoff period when the benefits will no longer be paid? He should explain to them what the situation is and ask for their help in resolving it so that the funds can be accessed by the beneficiaries. If they are unhelpful, he could contact the Insurance Ombudsman to lay a complaint, or again, he would need to get legal advice.
These are the contact details of the Office of the Ombudsman for Long-term Insurance (life insurance as opposed to car insurance):
Finally, moving to the threats and intimidation that the person assisting with following your cousin’s case received and so withdrew, as well as the threats received by the late uncle before he died:
In their article on what the legal consequences of threats are, Cavanagh & Richards Attorneys explain that "threatening someone may constitute assault if that person believed that the threat would be followed through".
There is a law called the Intimidation Act of 1982, which is an old apartheid-era law. In 2019 the Constitutional Court declared that Section 1(1)(b) of this Act was unconstitutional because of freedom of speech, and Section 1(2) was unconstitutional because the onus was on the accused to prove themselves not guilty, whereas our present law is that you are presumed innocent until found guilty by the state.
But having said that, it is still against the law to threaten and intimidate someone.
In the case of S v White in 2022, quotes Professor CR Snyman as making the point that it is well-known that intimidation is rife in South Africa. According to him, very few people seem to be prosecuted for the crimes created in the Intimidation Act. He suggests that “one of the reasons for this is that many people who would have been subjected to intimidation are, precisely because of the intimidation, afraid of laying criminal charges of intimidation or of testifying about the commission of the crime in a court.”
And that sums up the difficulty that your cousin is having in pursuing the deceased estate case: the person who withdrew after being threatened, was intimidated.
Perhaps if your cousin obtained legal advice, that person may feel safe enough to make a sworn affidavit about the threats made to induce him to stop pursuing the deceased estate case. It is a pity that your cousin’s uncle cannot now supply an affidavit as well, but perhaps your cousin can make an affidavit attesting to the threats his uncle received before his death.
Certified copies of these affidavits should be made available to both the Master and the Legal Aid to advise on what can be done. It would be worth approaching Legal Aid or other legal assistance before approaching the police, as the police are more likely to cooperate then. A case of intimidation should be opened and the police must establish who was the person behind these threats.
If you are unhappy with the police service you received, you can also call the toll-free SAPS Service Line: 0860 130860.
This was a long letter and I hope that at least some of the advice applies to your cousin’s case and is helpful. The following organisations would also be good to consult:
Email: help@blacksash.org.za
Helpline: 072 663 3739 or 063 610 1865
Email: info@probono.org.za
Johannesburg: 011 339 6080
Cape Town: 087 806 6070/1/2
Email: info@lhr.org.za
Musina: 015 534 2203
Durban: 031 301 0531
Pretoria: 012 320 2943
Johannesburg: 011 339 1960
Cape Town: 021 424 8561
Email: info@lrc.org.za
Johannesburg: 011 836 9831
Cape Town: 021 481 3000
Wishing you the best,
Athalie
Answered on Feb. 28, 2023, 1:23 p.m.
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