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By: Rita Padayachee / Partner / Mooney Ford Attorneys


An estate of a person who dies without a valid Will, is administered in terms of the Intestate Succession Act 81 of 1987.

Section 1 of the Act reads:

  • If after the commencement of this Act a person (hereinafter referred to as the “deceased”) dies intestate, either wholly or in part, and –
    1. is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;
    2. is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate;
    3. is survived by a spouse and a descendant:
      1. such spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and
      2. such descendant shall inherit the residue (if any) of the intestate estate.


Section 2(1) of the Maintenance of Surviving Spouses Act provides that a surviving spouse has the right to lodge a maintenance claim against his or her deceased spouse’s estate if they are unable to support themselves.  Section 1 of the Act defines a “survivor” as the surviving spouse in a marriage dissolved by death.

Section 1 of the Intestate Succession Act and Sections 1 and 2(1) of the Maintenance of Surviving Spouses Act only provide for a benefit for a surviving spouse.  This has been strictly interpreted as such.  A surviving partner of a permanent life partnership could not claim for maintenance from their deceased partner’s estate.

This was evidenced in the case of Volks vs Robinson and Others  (CCT12/04)[2005] ZACC 2; 2005(5) BCLR 46(CC) (21 February 2005.  Mrs Robinson and Mr Shandling were partners in a permanent heterosexual life partnership from 1985 until his death in 2001.  He had financially supported Mrs Robinson.  Mrs Robinson sought to claim spousal maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990 which was disputed by the Executor of the estate. Mr Volks on the grounds that Mrs Robinson could not be defined as a survivor / surviving spouse in terms of the Act.  Whilst Mrs Robinson succeeded in the High Court, the Constitutional Court rejected the interpretation of the work “spouse” to include an opposite sex life partner for purposes of a claim.

The Judgment handed down by the Constitutional Court in the case of Bwanya v The Master of the High Court, Cape Town & Others CCT(241) of 2020 [2021] ZACC 51 has brought about significant changes to South African Law.

Ms Bwanya and the deceased, Mr Ruch, were involved in a relationship and in 2014 Ms Bwanya moved in with Mr Ruch on a permanent basis. They planned to conceive a child and in the same year Mr Ruch proposed to Ms Bwanya and they planned to get married in 2016. Mr Ruch however passed away in November 2016.  Ms Bwanya lodged a claim for maintenance against Mr Ruch’s estate.  Her claim was rejected by the Executor on the basis that she was not married.  Ms Bwanya challenged the constitutionality of Section 1 and 2(1) of the Maintenance of Surviving Spouses Act.

The Court took cognizance of the increasing popularity of permanent life partnerships and the creation of many families within this category.

The Cour took into consideration that there are more than three million South Africans in life partnerships and found that excluding the right of a partner in a permanent heterosexual life partnership to inherit under Intestate Succession Act from a deceased’s partners estate to be unfair  discrimination on the grounds of marital status.

The Constitutional Court ruled that the omission of the words “surviving partner of a life partnership” from the definition of “survivor” in Section 1 of the Maintenance of Surviving Spouses Act and Section 1 (1) of the Intestate Succession Act was unconstitutional and invalid.


The acting Chief Master, Ms Penny Roberts, issued Chief Master’s Directive 9 of 2023 (CMD 9/2023) on the 3 November 2023.  This Directive deals with a variety of deceased estates matters including the appointment of executors and Master’s representatives under the Administration of Estates Act 66 of 1965 and proof of life partnerships in light of the Bwanya case judgement.


Photo by Aaron Burden on Unsplash