Evaluating whether the laws governing deceased estates infringe on the right to have access to adequate housing

Abstract

Despite many developments related to the right to housing in recent years, the laws governing deceased estates (in so far as they relate to the right to housing) remain remarkably unchanged. For example, a surviving spouse or other heirs are often forced to sell their primary residence in order to discharge the obligation to wind up the deceased’s estate and to liquidate the debts of the deceased. This is done without proper regard to relevant considerations of prejudice, including the risk of homelessness. The problem is exacerbated when the home is bonded at the time of the deceased’s passing and no life cover secures the outstanding bond – the provisions of the Administration of Estates Act 66 of 1965 oblige the executor to pay all the deceased’s creditors including the mortgagee. This is so even if the surviving spouse or other heirs can continue to service the monthly bond instalments but are unable to discharge the entire debt in one lump sum. In this article, the author contends that to the extent that the laws governing deceased estates necessitate the sale of a primary residence with the concomitant effect of rendering a spouse or heir homeless, they infringe on the right to have access to adequate housing enshrined in section 26 of the Constitution of the Republic of South Africa, 1996 and as such, are unconstitutional.