Court denies man’s claim to deceased lover’s estate amid family dispute

A man who claimed to be in a customary marriage with his long-time lover, who died in 2023, has been denied to claim her estate as the children of his partner dispute the marriage and produced a will that did not include him. 

Early this week, the Gauteng High Court, Pretoria, dismissed Phillip Botha Mogase's claim with costs. Mogase had told the court that he was entitled to inherit the estate of his long-time lover of 16 years and wife, Ntipo Debroah Martha Modiga, who died in June 2023. 

Mogase said he and Modiga entered a customary union on December 16, 2009, after being together from 2007. However, Modiga's children, Patrick Modiga and Keitumetse Rafedile, disputed the marriage and admitted that the pair was in a longstanding relationship. 

Patrick and Rafedile said their mother left a valid will dated March 3, 2020. They claimed that Modiga included them and her third sibling, Malefynane Modiga, in her will rather than designating her lover, Mogase, as a beneficiary.

She had also nominated Standard Trust Limited or Standard Bank of South Africa Limited as executors of her estate, but they renounced their nomination as executors in writing. 

The Master of the High Court: Pretoria issued a letter of executorship to Patrick on July 17, 2023. He proceeded with the administration of the Modiga estate by opening an estate account at First National Bank.  

“It accordingly logically follows that the first respondent in his capacity as executor of the deceased estate lawfully took control of the assets of the deceased estate in terms of the Administration of Deceased Estates,” said Acting Judge JF Grobler in his judgment. 

Mogase said his lover's children treated him unfairly after she passed away. Seeking legal protections, in his notice of motion dated July 13, 2023, Mogase wanted the children to be prevented from denying him access to his main home in Karenpark, Akasia, until the estate is settled. 

He wanted to stop the children from selling any assets belonging to his lover and required them to return her identification cards and any documents belonging to her. He also wanted them to cooperate with him in reporting the estate to the Master’s office and sign any necessary forms. Furthermore, Patrick and Rafedile had opposed these claims.

Acting Judge Grobler said that on the basis that the valid will of Modiga was accepted and acted on by the Master of the High Court, the application of Mogase can not stand. 

“Even if it is accepted that he entered into customary union with Modiga and was married to her in community of property, which was not the basis upon which he approached the court. He would at best have a claim against Modiga (lover) and not against the two respondents (Patrick and Rafedile),” Grobler added. 

Additionally, Grobler expressed his dissatisfaction with Mogase’s attorney for failing to comply with the practice directives of the High Court by uploading the heads of argument for this matter on the date of the hearing. 

“To add insult to injury, the caselines profile was poorly organised and very difficult to access, which made it difficult to find the relevant documents and to navigate through the matter,” he said. 

The acting judge said it would have been entirely reasonable to strike the application off the roll due to non-compliance, but he did not deem it reasonable to burden another court at a future date with this matter. 

nomonde.zondi@inl.co.za