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Is the Master’s Decision to Uphold an Objection on Habitatio Justified?

Will and testament 3
In the recent case of Maree v Master of High Court, Bloemfontein [2024] ZAFSHC 154, the court examined the intricate legal issue surrounding the right of habitatio within the context of wills and ante-nuptial contracts. This blog explores the court’s reasoning and its implications for estate administration.



The case involved an application by the spouse of the deceased, challenging the Master’s decision to uphold an objection to her claim for the right of habitatio. The applicant and the deceased had an ante-nuptial contract which excluded the accrual system and included a clause where the deceased undertook to cede the right of habitatio to the applicant upon their divorce or his death. The deceased reiterated this provision in his will, bequeathing the right of habitatio in the communal home to the applicant.

However, Maree, the deceased’s nephew and a beneficiary of the estate, objected to this claim. The Master upheld Maree’s objection, leading to the current application by the applicant to set aside the Master’s decision.


Facts of the Case

The applicant and the deceased were married with an ante-nuptial contract excluding the accrual system. Clause 5 of this contract provided the applicant with the right of habitatio over their communal home upon divorce or death of the deceased. The deceased confirmed this arrangement in his will. Maree objected to the applicant’s claim for habitatio and maintenance as recorded in the liquidation and distribution (L&D) account. The Master upheld Maree’s objection regarding the habitatio claim, prompting the applicant to seek a review and setting aside of this decision under section 35(10) of the Administration of Estates Act 66 of 1965.



The applicant requested that the Master’s decision to uphold the objection to the habitatio claim be set aside. Alternatively, she sought a review of this decision, arguing that the Master’s ruling lacked a careful examination of the legal position regarding the right of habitation.



The Master upheld Maree’s contention that the right of habitatio was not enforceable as it was not registered against the title deed of the property. Furthermore, the Master claimed that the applicant waived her right to habitatio by consenting to the sale of the farm on which the communal home was situated. However, the court found that the Master’s decision was flawed and based on a misinterpretation of the legal principles governing the right of habitatio.


Key Points from the Judgment:

1. Legal Position on Habitatio:

The court emphasized that the right of habitatio is a personal servitude that can exist independently of registration against the property title (see para 14 of the judgment).

2. Waiver of Rights:

The court found that the applicant’s consent to the sale of the farm did not constitute a waiver of her right of habitatio. The deceased’s will explicitly allowed for alternative accommodation provisions if the farm was sold (see para 17).

3. Master’s Examination:

The court criticized the Master for not carefully examining the legal arguments and merely accepting the objections raised by Maree without proper consideration (see para 19).


Memorable Quote

“The Master’s reasons do not reflect a careful examination or consideration of the legal position relating to the right of habitatio in the light of the second respondent’s objections and the executor’s response thereto” (para 19).



The court concluded that the grounds for Maree’s objections were misplaced. The Master’s failure to thoroughly consider the executor’s reasons and the legal principles involved led to an unjust decision.



The court set aside the Master’s decision to uphold Maree’s objections to the applicant’s habitatio claim and dismissed the objections in their entirety.




1. What is the right of habitatio?

The right of habitatio is a personal servitude that grants someone the right to live in a house or part of a house for their lifetime or for a specified period.

2. Does the right of habitatio need to be registered?

No, the right of habitatio does not need to be registered against the title deed to be enforceable, as it is a personal servitude.

3. Can a right of habitatio be waived?

Yes, a right of habitatio can be waived, but such a waiver must be explicit and clear. In this case, the court found no evidence of waiver by the applicant.

4. What role does the Master play in estate administration?

The Master oversees the administration of deceased estates, ensuring that the estate is administered according to the law and the terms of the will.

5. What can be done if one disagrees with the Master’s decision?

An aggrieved party can apply to the High Court to review and set aside the Master’s decision under section 35(10) of the Administration of Estates Act.


This case underscores the importance of thorough legal examination and adherence to established principles in estate administration. It serves as a reminder that objections to claims must be carefully scrutinized to ensure justice and fairness in upholding the deceased’s intentions and the rights of the beneficiaries.

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