A Singh was a member of the fund until he passed away on July 24, 2021. Picture: Pexels.com Fathima Sayed complained to the Pension Funds Adjudicator that the Old Mutual Superfund Provident Fund should not have paid A Singh’s full death benefit only to his two biological daughter
A woman who spent 17 years as a businessman’s life partner has failed in her bid to lay claim to a share in his death benefit totalling R21.3 million.
Fathima Sayed complained to the Pension Funds Adjudicator that the Old Mutual Superfund Provident Fund should not have paid A Singh’s full death benefit only to his two biological daughters.
Sayed was aggrieved that she had been excluded as a beneficiary of the death benefit, although she had received R7 million from a life policy at Singh’s death; was bequeathed immovable property estimated at R1.7 million; and receives R35 000 each month in terms of Singh’s will.
Singh was a member of the fund until he passed away on July 24, 2021. He was survived by Sayed, her son, his (Singh’s) two biological daughters, four grandchildren, and his former spouse.
Upon his death, a total death benefit of R21 308 051.38 became available for allocation to Singh’s beneficiaries. The board allocated 50% of the death benefit to each of Singh's two daughters.
Sayed said that she had been in a romantic relationship with the deceased since 2007 and she had resigned from her job at a bank, to attend to the needs of Singh and her then minor child, at home.
She said Singh financially assisted her by giving her an allowance equal to the salary she had received for the duration of their relationship. Singh was financially responsible for supporting her and her child from a former spouse, throughout their 17-year relationship.
She had also obtained property from her former spouse, through their divorce. Singh had assisted her in paying off her mortgage bond by providing her with R700 000. She sold her property for R967 592.72 to live with Singh, who in turn, provided for her.
Sayed said shortly after selling her property, she and Singh entered into a cohabitation agreement. At the time, she had just sold her residential property and felt compelled to agree with the terms of the agreement, in fear that she would be left without a home for herself and her son.
She said since signing the agreement and living with Singh, there had been instances of financial manipulation of her by Singh who would request large sums of money, which she paid him.
Her only source of income during her relationship with Singh, she said, was the maintenance payments made by her former spouse, credit overdraft facilities, and the sporadic but sufficient payments in cash/deposits from Singh.
Sayed said the fund had allocated the death benefit to Singh’s two biological daughters, who were fully independent and employed businesswomen and were not financially dependent on their father. She said the two daughters had also inherited significant business interests from Singh.
She claimed that when she signed a cohabitation agreement with Singh in February 2014, there had been no witnesses and some of the terms of the agreement had not been explained to her.
Although clause 5 of the agreement waived her right to share in the pension, provident fund, investments, profit sharing or other retirement interests of the partner; and the agreement terminated upon the death of either party; Sayed said that she was no longer bound by the cohabitation agreement after Singh’s passing, and as a result, she was entitled to any benefit that arose from his death.
She said she was informed by the executor of Singh’s estate, that his estate was insolvent and incapable of providing the necessary finance anticipated for the establishment of a trust that she was the beneficiary of.
The executor advised her that due to the estate's financial position, she may have to forfeit her special bequests, such as a car and the house, in order to give effect to the remainder of the will, Sayed said.
She added the dispute between herself and the executor was on-going and it was not certain whether the will’s provisions would be implemented as intended. She could not rely on the R35 000 per month as envisioned in the will as a safety net.
Sayed said that she had received a life insurance policy payout (R7 million) following Singh’s passing, and indicated that though it was a substantial amount, it did not cover all living expenses and potential unforeseen costs.
Her former spouse had been financially responsible for her son since Singh passed away, Sayed said. The son was in the final year of his studies and had moved out, leaving her without a maintenance contribution from her former spouse.
She argued that she had not worked for 15 years and struggled to obtain employment at her age, and that her policy payment may not last throughout her lifetime.
Sayed said that the fund had failed to recognise her as a dependant, and stressed that she had been financially dependent on Singh and, therefore, should be considered as a factual dependent.
She provided a non-registered marriage certificate between her and Singh dated June 24, 2019, as proof that they wanted their relationship to be seen as legitimate as a normal marriage.
Sayed said that the waiver clause in the cohabitation agreement was intended for the possibility of a divorce between her and Singh. She said the agreement did not exclude a discretionary award to her of a portion of the pension benefit.
They lived in separate homes for four to five years before Singh passed away but he regularly travelled between the two homes and was in charge of the general home tasks associated with both houses, and at all times, she lived and acted as his wife, Sayed said.
The executor of the deceased’s estate paid her an estimated R35 000 a month as she was aware of the extent of her dependency on Singh. She was uncertain whether the payments came directly from Singh’s daughter or from his estate.
Sayed claimed that she suffered from a clinically diagnosed auto-immune disease, lupus, which influenced her daily functioning.
She had applied for various jobs of different skill levels, with no success. She said she was close to retirement age, which limited her ability to earn an income, which indicated that she may not be able to earn an income in the future.
In her determination, the Pension Funds Adjudicator, Muvhango Lukhaimane, said it was the board’s responsibility when dealing with the payment of death benefits to conduct a thorough investigation to determine the beneficiaries, thereafter decide on an equitable distribution and finally to decide on the most appropriate mode of payment of the benefit payable.
She said the fund was correct in identifying Singh’s biological daughters as dependents of the deceased.
She said permanent life partners were included in the definition of dependent. Therefore, Sayed qualified as a legal dependent of Singh. However, the fact that a person qualified as a legal or factual dependant did not automatically give them the right to receive a portion of a death benefit.
“The submissions indicate that the complainant received R7 000 000 from a life policy due to the deceased’s death and R35 000 per month from either the deceased’s estate or its executor. It is further unconfirmed whether or not the deceased’s estate is insolvent.
“However, if the estate is not insolvent, the complainant was also bequeathed immovable property estimated at R1 700 000. The complainant was placed in a better position due to the third-party payment she received. Furthermore, the complainant can still find employment.
“The facts indicate that even though she is 52 years old, she has prior work experience and a tertiary-level education. She still has an income-earning potential and can find employment. Therefore, the fund was correct in not allocating a portion of the death benefit to the complainant,” said Lukhaimane.
With regard to the cohabitation agreement, Lukhaimane said Sayed should have been aware of what she was signing and could claim that the terms of the agreement were not explained to her. The terms of the cohabitation agreement clearly showed that the parties had agreed that there would be no sharing of pension benefits.
“In light of the above, I am satisfied that the board of the fund took into account relevant factors and did not abuse its discretion in the allocation of the deceased’s death benefit. The death benefit was properly allocated to the dependants of the deceased and there is no reason to set aside the board’s decision. Thus, the complaint cannot succeed and is, therefore, dismissed,” said Lukhaimane.
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