Govender NO and Others v Gounden and Others

• Jurisdiction: South Africa

Govender NO and Others v Gounden and Others
2019 (2) SA 262 (KZD)

2019 (2) SA p262

Citation	2019 (2) SA 262 (KZD)
Case No	AR 452/2015
Court	KwaZulu-Natal Local Division, Durban
Judge	K Pillay J, Koen J and Ploos Van Amstel J
Heard	August 24, 2018
Judgment	August 24, 2018
Counsel	DD Naidoo for the first and second appellants.; H Gunase for the third and fourth appellants.; S Morgan for the first and second respondents.

Flynote : Sleutelwoorde

Administration of estates B — Heirs and legatees — Heir — Inheritance — When right to inheritance vesting — Whether spouse married in community of property may renounce inheritance without other spouse's consent — When in time renunciation may be made.

Headnote : Kopnota

Mr and Ms Gounden C were married in community of property. Ms Gounden's sister died. Ms Gounden was the heir to her estate. Mr Gounden later died. Ms Gounden then renounced her inheritance. Meanwhile, the administration of the sister's estate proceeded and accounts were advertised.

Mr Gounden's D executors objected thereto that the inheritance was not awarded to the joint estate of Mr Gounden and Ms Gounden. Ms Gounden objected that her renunciation was not given effect to.

The Master's ruling was that the inheritance was part of the joint estate; and that the renunciation was invalid (see [10]).

Ms Gounden then applied against the Master, her sister's executors and E Mr Gounden's executors for a declaration that the renunciation was valid and that the Master accept it (see [11]). The court granted this and Mr Gounden's executors appealed to the full bench (see [13] – [14]).

The grounds of appeal were that the court erred in finding that the right to the inheritance vested in the joint estate on confirmation of the estate accounts (the moment the right became enforceable), rather than on the sister's F death; and that it further erred by failing to find that, after the death and vesting, Ms Gounden required Mr Gounden's consent to renounce it (see [14]).

Held, by the full bench:

•

The right to the inheritance vested in the joint estate on the sister's death (see [28], [32] and [43]);

•

Ms Gounden G did not require Mr Gounden's consent to renounce the inheritance (see [1], [29], [40] and [45]);

•

Ms Gounden could renounce even after confirmation of the estate accounts (see [44]).

Consent granted to withdrawal of an application to lead further evidence; the order of the court a quo upheld for different reasons; and the appeal H dismissed (see [48] and [50]).

Cases cited

Boland Bank Bpk v Du Plessis 1995 (4) SA 113 (T): referred to

De Leef Family Trust and Others v Commissioner for Inland Revenue 1993 (3) SA 345 (A): dictum at 358C applied

Gounden and Another v Master and Others I [2015] ZAKZDHC 6: order upheld on appeal

Kellerman NO v Van Vuren and Others 1994 (4) SA 336 (T): dictum at 337 followed

Klerck and Scharges NNO v Lee and Others 1995 (3) SA 340 (SE): referred to

Nedbank Ltd v Van Zyl J 1990 (2) SA 469 (A): dictum at 476 applied

2019 (2) SA p263

Santam Insurance Ltd v Meredith 1990 (4) SA 265 (TkA): dictum at 269 A applied

Van Schoor's Trustees v Executors of Muller (1858) 3 Searle 131: referred to.

Case Information

DD Naidoo for the first and second appellants.

H Gunase for the third and fourth appellants.

S Morgan for the first and second respondents. B

An appeal to the full bench against a decision of D Pillay J (Gounden and Another v Master and Others [2015] ZAKZDHC 6).

Order

(a)

In respect of the first respondent's application to adduce further C evidence on appeal by affidavit; the opposition to that application; the first respondent's withdrawal of that application; and the appellants' objection to that withdrawal of the application contained in the appellants' notice in terms of Uniform Rule 30 read with Uniform Rule 41(1)(a), the following orders are granted: D

(i)

Insofar as the consent of this court might be required for the withdrawal of that application, such consent is hereby granted;

(ii)

the parties will each be liable for their own costs of the application to adduce further evidence; the opposition thereto; and the dismissal of the appellants' notice in terms of uniform rule 30 read together with uniform rule 41(1)(a). E

(b)

The appeal is otherwise dismissed with costs.

Judgment

Koen J (K Pillay J and Ploos van Amstel J concurring):

Introduction F

[1] The crisp issue arising in this appeal is whether a spouse who is married in community of property requires the consent of the other spouse to that marriage to validly renounce the benefits of an intestate inheritance which would otherwise accrue to such spouse and/or the joint community estate.

Relevant background G

[2] The first respondent was married to Mr Gopalsamy Gounden (Mr Gounden) on 2 October 1974. One child, the second respondent, was born of that marriage. The first respondent and Mr Gounden subsequently separated. They thereafter led separate lives for approximately 35 years, but never formally divorced. H

[3] After his separation from the first respondent Mr Gounden lived with the third appellant as his life partner. From that relationship the fourth appellant was born. I

[4] The first respondent's sister, Siva Lutchmi Somnaidoo (the deceased), died intestate on 19 August 2008. The first respondent is an intestate heir in the estate of the deceased.

[5] Mr Gounden died testate on 6 March 2012. The first and second appellants are the duly appointed executor and executrix to the estate of the late Mr Gounden and the first respondent. J

2019 (2) SA p264

Koen J (K Pillay J and Ploos van Amstel J concurring)

[6] A The first respondent has renounced the inheritance from the deceased's estate. The formal renunciation in writing was signed by the first respondent at Isipingo on 11 July 2013 and records that she renounces 'any inheritance or bequests due to me as an intestate heir from the estate of the late Siva Lutchmi Somnaidoo, estate No 17603/2008 DBN'. B It appears that this document was executed, as it was formally required, but that the actual renunciation had occurred informally and that the intention to do so had been formed well prior to that date, although the exact date is not specified. It is that renunciation which gave rise to the application and judgment forming the subject of this appeal.

[7] C The Master of the High Court, Durban, is the third respondent. The third respondent appointed the fourth respondent as the executrix in the estate of the deceased on 25 May 2012.

[8] On 21 September 2012 a first liquidation and distribution account in D the estate of the deceased was lodged. It was examined by the third respondent and queries were raised. Further amended accounts were lodged subsequently. On 5 December 2012 a further amended account was lodged and examined. On 3 January 2013 the third respondent granted permission to advertise the account in terms of s 35(5)(a) of the E Administration of Estates Act 66 of 1965.

[9] An objection was then lodged to the account by the executors of the Estate Gounden. The basis of their objection is that the amount awarded to the first respondent vested in the joint estate of Mr Gounden and her, and subsequent to his death in the joint estate of the late Mr Gounden and the first respondent as his surviving spouse, which they administer. F An objection was also raised by the first respondent based on her renunciation which was not given effect to in the accounts.

[10] The third respondent ruled on the objections and on 20 August 2013 determined that the 'inheritance due to [the first respondent] . . . G forms part of her joint estate with her husband who has subsequently died'. The third respondent was not prepared to accept the renunciation signed by the first respondent alone as a valid renunciation.

[11] As a result of these rulings, the first and second respondents brought an application against the third respondent [1] , the fourth respondent, H [2] and the first and second appellants [3] as the executors in the estate of the late Gounden, claiming the following relief:

'1.

That the letter of renunciation by Lutchmi Gounden, [4] Annexure C to the founding affidavit is declared valid and binding and enforceable in respect of the estate of the late Sivalutchmee Somnaidoo, I estate No 17603/2008/DBN.

2019 (2) SA p265

Koen J (K Pillay J and Ploos van Amstel J concurring)

2.

That the First Respondent [5] is hereby directed to accept the A aforesaid renunciation as valid and binding and enforceable.

3.

That the First Respondent is ordered to pay the costs of this application, alternatively, the First Respondent is ordered to pay these costs jointly and severely [sic] with the Second, Third and Fourth Respondents in the event of the Second, Third and Fourth Respondents opposing this application. B

4.

Further and/alternative relief' [6]

[12] In the application the first respondent explained the events giving rise to her renunciation as follows:

'12.1

In the event that I accept the benefit from Siva Lutchmee's estate, C such benefit would, by virtue of my marriage to Gopalsamy, accrue to the joint estate of myself and Gopalsamy (Gopalsamy's estate since he's deceased).

12.2

Since Gopalsamy bequeathed his estate to his son [7] and to Miriam [8] and others the net result would be that half of the benefit that I am to receive from my sister, Siva Lutchmee would go to Gopalsamy's beneficiaries. D

12.3

For obvious reasons I am opposed to that.

13. 13.1

In order to avoid the benefit from my sister's estate accruing to the community of property estate of myself and Gopalsamy, I renounced my benefit from the estate Siva Lutchmee. [9]

13.2

A copy of the letters of...