Question:
Background: My mother passed on June 2003. She had four children and at the time of her death our ages were, 30, 27,25 and 8 years respectively. Here is a brief profile about ourselves at the time of her death: 30, was married but at the time they had marital problems and she was back at home and she was not working. However, I can attest the husband wassupporting her financially during their “separation” 27, was working as a flight attended at SAA. I (25) was employed as at Unilever and staying in Durban. 8 was still at school doing grade 2. After the burial, I told my sisters that since I was staying in Durban, they must sort out my mother’s estate and if there is anything that my mother has left for me, they must transfer it to my brother. I also said should I be needed I will avail myself or if the affidavit will be enough, I will get one. To cut the long story short, they couldn’t sort out the estate because of personal conflict between the two. I relocated to Gauteng in 2004. I tried to sort out the difference but it did not work out best. I called the fund and they told me nothing will happen until all of us come to their offices. Since I was working, I told myself, I will look after my brother till we find a solution to this challenge we had as a family. My father who separated from my mother (1978-1993 (divorced) and 1995-until her death still married)), passed on and my eldest sister moved into his house. Sometime in 2007 my gut told me to open a post addressed to my eldest sister from Old Mutual, to my shock and surprise, I discovered that my mother’s estate has been settled and a trust has been opened for my brother. I also discovered that my sister was receiving a monthly allowance for my brother’s wellbeing. I was furious because my brother doesn’t nor hasn’t received a cent from my sister since my mother’s days… now she is receiving money meant for him and she is keeping it. When I enquired I also found out that she also received a lump sum payment. I told Old Mutual to immediately stop that payment. I called the fund to enquire how was that possible. Another shock… she produced an affidavit claiming that my mother had two children, her and my brother and that my father was depend on my mother and when she died, they needed the money. She totally disowned my sister and I. I also could not make sense that why and how the fund allowed this as my limited understanding is that the trustees need to investigate before they pay let alone, they should have known that there was a dispute amongst the siblings. In trying to sort out this, from the fund, I was sent from pillar to post. My other sister also tried. Till this day we have never received a cent. I have maintained my brother till today. Sometime in 2010 or 2011 my sister went to SACCAWU and discovered that the affidavit that was produced by my sister has been changed and replaced with another one. That made me think, there is something stinking… My brother is at WITS and the fees and accommodation are straining my budget, now i'm married. Is it possible to sue the fund? How best should I (we) handle this with the fund. What should we expect to be the outcome? Regards, Sipho
Answer:
Sipho, This is a very sad state of affairs, especially that someone would disown their siblings. There are really two aspects here. Firstly, your sister misappropriating your brother's funds is tantamount to theft or fraud. This is a legal matter and you may have to involve a lawyer, to sue your sister for monies received by her not used for your brother's benefit. This is not our area of expertise, so you should consult a lawyer on this.
The second is that Old Mutual may not have followed due process (establishing that your sister was actually looking after the brother), and you should lodge a formal complaint with them, using their internal complaints procedure which should be described on their website. If this does not rectify the matter, you can then escalate this matter to the Pension Funds Adjudicator. From your question, it appears that "27" and "25" were financially independent on your mother whereas your late father, "30" and "8" were factually, financially dependent, so the allocation of the money to 30, to look after your father and "8" appears appropriate (as long as she actually did so). Note that "8" should receive the balance of the trust fund on turning 21.
