MALOYA v NYAMUPFUKUDZA NO & ANOR 2008 (2) ZLR 314 (H)

Flynote

Administration of estates — maintenance — dependant — who is — person unrelated to deceased who received support during lifetime of deceased — not entitled to maintenance

Headnote

The applicant was employed by the late M (hereinafter referred to as "the deceased"). The applicant had a minor child, who stayed with him after he divorced the child's mother. From the time of the divorce until his death, the deceased provided the child with the basic necessities of life. The deceased, in his will, left his entire estate to his sister. The will was accepted by the Master of the High Court as the deceased's finaltestamentary disposition. The applicant sought, in terms of s 3, as read with s 8(2)(d), of the Deceased Persons Family Maintenance Act [Chapter 6:03], an order that a specified immovable property be transferred to the child. It was argued that the child was a "dependant" of the deceased in terms of para (f) of the definition of "dependant". This classifies as a dependant any person who (i) was being maintained by the deceased at the time of his death or (ii) was entitled to the payment of maintenance by the deceased at the time of his death. Held, that a "dependant", in the context of the Act, must be someone whom the deceased had a legal duty to maintain. The word "maintain", in the context of the Act, connotes a legal duty on the part of the deceased to maintain the claimant. In casu, the deceased had no legal obligation to maintain the minor child. It was an act of benevolence on the part of the deceased, constituting gratuitous support. He was assisting the child's father, who had a legal obligation to maintain the child. Adopting the approach suggested by the applicant would lead to an absurdity, more particularly in the context of the African extended family. If the deceased, during his lifetime, had ceased to assist the minor child, the applicant could not have successfully sued the deceased for maintenance.