Feldman v Oshry NO and Another (6752/20007) [2009] ZAKZDHC 8; 2009 (6) SA 454 (KZD) (14 April 2009)

Feldman v Oshry NO and Another (6752/20007) [2009] ZAKZDHC 8; 2009 (6) SA 454 (KZD) (14 April 2009)

The court held that the plaintiff, as the surviving spouse, is entitled to maintenance from the estate of the deceased under the Maintenance of Surviving Spouses Act 27 of 1990, as her own means are insufficient to meet her reasonable maintenance needs. Voluntary contributions from her sons are not to be considered part of her 'means' for the purposes of the Act. The court found that maintenance should be awarded as periodical payments rather than a lump sum, as the Act does not permit lump sum awards except by agreement. The plaintiff's claim for a lump sum was dismissed, but she was awarded monthly maintenance payments. Regarding the donation, the court found that the defendants failed...

Citation
[2009] ZAKZDHC 8
Parties
Plaintiff: Marjorie Pearl Feldman; Defendant: Stanley Oshry N.O.; Defendant: Beverly June Oshry N.O.
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
14 April 2009
Case Number
6752/2006
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim for a lump sum maintenance award is dismissed; plaintiff is awarded periodical maintenance payments and the donation claim succeeds.
Judges
Van Zÿl
Legal Topics
Maintenance of Surviving Spouses Act, Reasonable Maintenance Needs, Testamentary Bequest, Donation, Periodical Payments
Family and Children Maintenance of Surviving Spouses Act Reasonable Maintenance Needs Testamentary Bequest Donation Periodical Payments

Case Brief

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Parties

Marjorie Pearl Feldman

Plaintiff

Stanley Oshry N.O.

Defendant

Beverly June Oshry N.O.

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff, as surviving spouse, is entitled to maintenance from the estate of the deceased under the Maintenance of Surviving Spouses Act 27 of 1990.
  2. 2 Whether voluntary contributions from the plaintiff's sons should be considered as part of her 'means' under the Act.
  3. 3 Whether maintenance may be awarded as a lump sum or only as periodical payments.

Ratio Decidendi

The court held that the plaintiff, as the surviving spouse, is entitled to maintenance from the estate of the deceased under the Maintenance of Surviving Spouses Act 27 of 1990, as her own means are insufficient to meet her reasonable maintenance needs. Voluntary contributions from her sons are not to be considered part of her 'means' for the purposes of the Act. The court found that maintenance should be awarded as periodical payments rather than a lump sum, as the Act does not permit lump sum awards except by agreement. The plaintiff's claim for a lump sum was dismissed, but she was awarded monthly maintenance payments. Regarding the donation, the court found that the defendants failed...

Court Disposition

Plaintiff's claim for a lump sum maintenance award is dismissed; plaintiff is awarded periodical maintenance payments and the donation claim succeeds.

Orders

  • Defendants, as executors of the estate of Lionel Maurice Feldman, are directed to recognize the plaintiff's claim for maintenance under section 2(1) read with section 3 of the Maintenance of Surviving Spouses Act 27 of 1990.
  • Defendants are directed to pay maintenance to the plaintiff in the sum of R9,628.63 per month, effective from 6 October 2006 and monthly thereafter until her death or remarriage, or until otherwise varied, suspended, or discharged according to law.