Barnard NO v Van der Merwe (7706/2007 – A767/2009) [2011] ZAGPPHC 228; 2012 (3) SA 304 (GNP) (2 December 2011)

Barnard NO v Van der Merwe (7706/2007 – A767/2009) [2011] ZAGPPHC 228; 2012 (3) SA 304 (GNP) (2 December 2011)

The court held that the respondent was required to formally lodge and prove her accrual claim against the deceased estate, and that the executor was justified in not including the claim in the first liquidation and distribution account. The accrual system under the Matrimonial Property Act creates a claim, not an automatic entitlement, and the surviving spouse must notify and quantify the claim for the executor. Clause 6 of the ante-nuptial contract restricts the accrual to assets acquired after marriage that were ordinarily used by both spouses for specified purposes. Agricultural holdings, unit trusts, and insurance policies did not meet these criteria and were excluded from the accrual...

Citation
[2011] ZAGPPHC 228
Parties
Appellant: Celeste Barnard; Respondent: Caroline van der Merwe (formerly Bartum)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 December 2011
Case Number
7706/2007 – A767/2009
Procedural Posture
Civil Appeal / Appeal From Single Judge Decision
Outcome
Appeal upheld with costs, including costs of two counsel. The order of the court a quo is substituted.
Judges
EM Makgoba, E Bertelsmann, FG Preller
Legal Topics
Matrimonial Property Act, Accrual System, Estate Administration, Late Claims, Ante Nuptial Contract Interpretation
Family and Children Civil Procedure Matrimonial Property Act Accrual System Estate Administration Late Claims Ante Nuptial Contract Interpretation

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Parties

Celeste Barnard

Appellant

Caroline van der Merwe (formerly Bartum)

Respondent

Procedural Posture

Civil Appeal / Appeal From Single Judge Decision

Legal Issues

  1. 1 Whether the respondent's accrual claim against the deceased estate arose automatically or required formal lodgement and proof.
  2. 2 Which assets are included in the accrual calculation under clause 6 of the ante-nuptial contract.
  3. 3 Whether the executor was justified in not including the accrual claim in the first liquidation and distribution account.

Ratio Decidendi

The court held that the respondent was required to formally lodge and prove her accrual claim against the deceased estate, and that the executor was justified in not including the claim in the first liquidation and distribution account. The accrual system under the Matrimonial Property Act creates a claim, not an automatic entitlement, and the surviving spouse must notify and quantify the claim for the executor. Clause 6 of the ante-nuptial contract restricts the accrual to assets acquired after marriage that were ordinarily used by both spouses for specified purposes. Agricultural holdings, unit trusts, and insurance policies did not meet these criteria and were excluded from the accrual...

Court Disposition

Appeal upheld with costs, including costs of two counsel. The order of the court a quo is substituted.

Orders

  • It is declared that there was just reason for the defendant not to have dealt with the accrual claim of the plaintiff in the first liquidation and distribution account in the estate of the deceased.
  • It is declared that the plaintiff was required to lodge and prove an accrual claim in the estate of the deceased, and normal principles relating to late claims apply.