Husband fails in second attempt to claim wife's death benefit

By Janice Roberts
Editor
Muvhango Lukhaimane, Pension Funds Adjudicator

For the second time in a year, a Durban man has failed in his attempts to lay his hands on a benefit of almost R4-million following his wife’s death. This is according to Pension Funds Adjudicator Muvhango Lukhaimane.

In a statement today, she explained that in September 2018, Krean Naidoo of Umhlatuzana Township had complained to the Pension Funds Adjudicator about Coca Cola Shanduka Beverage Provident Fund (first respondent) for paying the death benefit into the deceased’s estate account.

However, the complaint was dismissed on the grounds that the complainant had excluded himself from being a legal dependant of the deceased.

The dead woman Ms S Naidoo was a member of the first respondent until she passed away on 24 June 2016. The complainant was the spouse of the deceased.

Following her demise, a death benefit in the amount of R3 829 618.42 became available for distribution to her beneficiaries. The board of the first respondent resolved to pay the death benefit into the deceased’s estate account.

The complainant and the deceased were married out of community of property. The deceased moved out of the common home in November 2015 and thereafter lived alone until the time of her death.

The first respondent submitted that prior to her death, the deceased had initiated divorce proceedings against the complainant.  Further, the complainant and deceased agreed in a deed of settlement that neither party had any claim to the assets of the other.

The deceased had a Will in which she appointed her parents as her sole beneficiaries. In the event of them predeceasing her, her entire estate would then devolve upon her two sisters. The Will was declared valid by the High Court following an application by the deceased’s parents which was opposed by the complainant.

In her original determination in April 2019, Ms Lukhaimane said the complainant and the deceased were estranged since November 2015 and were no longer living together on the date of her death. 

Further, prior to the death of the deceased, she had initiated divorce proceedings against the complainant and they signed a deed of settlement wherein they agreed that neither party had any claim to the assets of the other.

“The deceased had a Will in which she appointed her parents as her sole beneficiaries.

“The complainant confirmed to the first respondent that he was not financially dependent on the deceased. Therefore, by agreement with the deceased, the complainant excluded himself from being a legal and/or factual dependant of the deceased.

“It follows that his exclusion from the allocation of the death benefit was equitable in the circumstances,” Ms Lukhaimane said.

She found that the payment of the death benefit into the estate account was justifiable under the circumstances. Thus, the complaint was dismissed.

However, the complainant was not happy and submitted an application for reconsideration of the determination to the Financial Services Tribunal (FST). The basis for his application was primarily that he was entitled to a portion of the death benefit as the spouse of the deceased and thus, as a legal dependant.

The FST handed down a ruling, setting aside the PFA’s original decision and referred the complaint to the PFA for reconsideration based mainly on the issue that the PFA had failed to fully investigate the circumstances regarding the complainant’s allegation that he and the deceased were to reconcile.

This was disputed by the first respondent which submitted that the complainant did not submit any evidence to prove that he and the deceased were reconciling prior to her death. 

It submitted that by his admission, the complainant and the deceased last communicated three weeks prior to her death, “which is highly non-indicative of reconciliation”.

The first respondent submitted that the overriding factor for all section 37C death claims is financial dependency at the time of the death of the deceased, which factor the complainant failed to prove as he confirmed on numerous occasions and at the FST hearing, that he was not financially dependent on the deceased at the date of her death. 

The first respondent submitted that in order to prove that at no point did the deceased consider reconciling with the complainant, it attached affidavits from the deceased’s mother, a close friend and the attorney representing the deceased in the divorce proceedings.

The first respondent submitted that considering the affidavits, it was clear that the deceased was afraid of the complainant and did not want him to know where she lived after they separated. 

The deceased sought to rather meet with him in a public space as she feared the complainant.

Also, the deceased had not mentioned that she was considering reconciliation with the complainant to any of the three persons mentioned above, particularly her legal representative who held instruction to proceed with the divorce and had received no instructions whatsoever to halt or pend the divorce proceedings.

Further the deceased’s mother stated that shortly before her death, the deceased also considered immigrating to Canada without her spouse.

The first respondent submitted that the complainant had made it repeatedly clear that he was not financially dependent on the deceased as can be evident by the fact that the parties married via an ante-nuptial contract without accrual. The complainant wanted to be allocated a portion of the death benefit solely on the basis that he was the spouse of the deceased.

The first respondent submitted that the complainant had two immovable properties registered in his name.  The complainant was also gainfully employed and would not be left destitute following the death of the deceased.

Therefore, the first respondent decided not to allocate a portion of the death benefit to him.

In issuing a determination for the second time in this matter, Ms Lukhaimane said the complainant was aggrieved with the board’s decision to pay the deceased entire death benefit into her late estate.

While the complainant had submitted that he was the legal spouse of the deceased, he and the deceased were estranged since November 2015 and were no longer living together on the date of her death. 

She said the complainant had confirmed to the first respondent that he was not financially dependent on the deceased. Therefore, he was not a factual dependant of the deceased.

The complainant had also failed to provide proof that he and the deceased were in the process of reconciliation. The complainant could have submitted Whatsapp messages, SMSes exchanged between the parties or further telephone records proving that the parties were in communication enough to prove that they were reconciling. However, he failed to do so.

“This Tribunal is satisfied that the complainant is not entitled to a portion of the death benefit. Therefore, the complaint is hereby dismissed,” Ms Lukhaimane ruled.

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