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Q MY FATHER passed away in March this year. I have some questions about his assets.
My parents divorced 12 years ago because of my father's extramarital affair. Although the court awarded my mother half of my father's assets, including the flat, he did not give her any money.
She got the entire flat, but its sale price was not enough to cover the total amount awarded by the court.
My father was then declared bankrupt for failing to pay her the full amount of the divorce settlement. He was subsequently discharged from bankruptcy.
After his death, my siblings and I wanted to apply for a letter of administration for the division of his assets. However, we discovered that he had made a will in June last year, bequeathing all his assets to his mistress. Thus, our application stood no chance of being approved by the court and, upon the advice of our lawyer, it was withdrawn.
My mother then sought legal advice as to whether she could still assert a claim to my father's assets on the basis that she was still owed money for the divorce settlement.
However, her lawyer advised her that her chances of success were slim because of the long time lag (as the divorce was granted 12 years ago) and also because my father had already been discharged from bankruptcy.
Can my siblings and I contest the will on the basis that my father was not of sound mind? He was very depressed at the time due to his illness, although he did not seek psychiatric help.
Can my mother still lay claim to some of my father's assets on the basis of maintenance owed, even though her lawyer advised her that such a claim stood very little chance of success?
A As there are several issues that need to be addressed, the answer has been broken down under two main categories.
On the will: If you want to challenge your father's will on the grounds that you have raised, you would need to obtain a medical report on both his physical and mental state when he made the will.
You should speak to his attending doctor at the time the will was made, in order to ascertain what state he was in when he made the will.
You would need to set out the circumstances under which the will was made. For example, had your father been hospitalised? Was he coherent? Who were the witnesses to the will?
The attending doctor could easily furnish a report.
On the monies owing: Wills include a general clause to the effect that all debts have to be paid.
Arrears of maintenance can be claimed as a debt and, although a period of three years is suggested by law, the courts can always exercise their discretion.
Your mother should set out the reasons why she did not or could not claim the arrears earlier.
If the reason was his bankruptcy, did she file a proof of debt with the Official Assignee? If not, she can still try claiming by writing to the executors of the will and setting out the debts owing pursuant to the court orders.
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