- The High Court dismissed an application seeking immediate entitlement to rental income from a property subject to a lifetime usufruct.
- The court found that beneficiaries and legatees should have been joined, as they have a direct legal interest in the outcome.
- The judgment confirms that a usufruct vests on death, but it cannot be enforced until the Master approves the final liquidation and distribution account.
A woman who cared for her late partner and later moved into frail care has lost her bid to take immediate control of rental income from the home he gave her the right to use for life.
The High Court in Durban dismissed an application by Violet Ann Murphy McHardy, who sought immediate access to rental income from a property left to her by her late partner under a lifetime usufruct. This legal right allows someone to use and enjoy another person's property for a specified period.
Lifetime usufruct at the heart of the dispute
Jan Lucas Bakels died on 18 October 2022 after leaving a will that granted McHardy a lifetime usufruct over the Palm Lakes property where they had lived together.
They will also state that if she moved into a frail care facility, the property could be rented out to support her needs. The family trust would maintain the property and pay its levies, special levies, rates, taxes and utility expenses, ensuring she suffered no financial hardship.
In October 2023, McHardy moved from the property to a smaller unit within Palm Lakes Estate, and in January 2024, she moved into the frail care facility at The Village Retirement Home due to declining health. The property was then leased to a third party for R25,000 a month.
McHardy argued that the will gave her the exclusive right to lease the property and receive all rental income from the date of Bakels' death. She maintained that the executor had no authority to lease the property or keep the rental proceeds.
She told the court that while some rental income had initially been used to help pay for her accommodation, those benefits stopped after a new executor was appointed.
Executor says estate administration must come first
The executor opposed the application, arguing that although McHardy's usufruct vested at the time of the deceased's death, it was not yet enforceable because the administration of the estate had not been completed.
The executor also said that the deceased's daughter, grandson and granddaughter had direct legal interests in the estate and should have been joined to the proceedings, as the relief sought could affect their rights.
According to the executor, paying all rental income to McHardy immediately would leave the trust responsible for maintaining the property, but without the income needed to meet those obligations.
Court finds non-joinder is fatal
The High Court agreed that the beneficiaries and legatees had a direct and substantial legal interest in the case. The judge said, "The order sought by the applicant would necessarily affect the financial position of the legatees and beneficiaries… That potential prejudice is enough to require their joinder."
Because those interested parties had not been joined, the court found that the application could not succeed. The court also rejected McHardy's argument that the usufruct entitled her to immediate payment of the rental income.
The judge held that although McHardy's usufruct vested immediately upon Bakels' death, it could not yet be enforced against the executor. "The ability to exercise and enforce the usufruct is deferred until the final liquidation and distribution account is confirmed by the Master," the judge explained.
The court also found that the wording of the will supported this conclusion, as it expected trustees to provide for McHardy only after the family trust had been established, which would happen after the estate administration was complete.
"When interpreting wills, the starting point is to determine the wishes of the testator from the language they used in the will," the judge said.
Estate ordered to pay costs
After finding the application lacked merit, the High Court dismissed it. Although McHardy was unsuccessful, the court declined to order her to pay the legal costs out of her own pocket.
Instead, the court ordered that the costs of the application be paid from the estate of the late Jan Lucas Bakels, saying this would avoid placing more financial strain on her, given her existing financial challenges.
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