When a Telkom employee died in October 2022, his retirement fund held a death benefit of R7.68 million. He left a wife, two small children and a widowed mother, and no beneficiary nomination. The fund gave his mother 10 per cent, R768,000, and his widow has contested that share ever since. In a judgment reported on 27 October 2026, the Pretoria High Court sent the decision back to the fund to be made again, this time on proper evidence.
Most people believe their will decides who gets their pension when they die. It does not. For the largest asset many South Africans own, the will has no say at all.
Who really decides
Section 37C of the Pension Funds Act lifts death benefits out of your estate. The fund's board of trustees decides who is paid and how much. Your executor does not receive the money and your will does not direct it.
The trustees must do three things:
1. Find your dependants. They have 12 months from your death to trace everyone who depended on you.
2. Consider your nominees. A nomination form tells the board what you wanted. It guides the board but does not bind it, and dependants come first.
3. Divide the benefit equitably. Age, health, income, other support and each person's relationship with you all count.
Three kinds of person qualify as a dependant:
• Legal dependants: people you were obliged by law to support, such as your spouse and minor children.
• Factual dependants: people you actually supported without a legal duty, such as a life partner, a parent or a stepchild.
• Future dependants: people you would in time have become obliged to support, such as an ageing parent.
Only when there are no dependants and no nominees does the money fall into your estate. Then, and only then, your will applies.
What the courts said this year
A late claim is not a lost claim. In South African Retirement Annuity Fund v Pension Funds Adjudicator, 2026 ZASCA 79 (opens in a new tab) (28 May 2026), a widow discovered her husband's retirement annuity 27 months after his death. The fund refused her as out of time and paid the money into his estate. The Supreme Court of Appeal held that the 12-month period is a guideline, not a bar. A fund's duty to trace dependants starts when it learns of the death, and the estate is the last resort, not a shortcut.
Dependency is judged at the date of death. In Mutsila v Municipal Gratuity Fund, 2025 ZACC 17 (opens in a new tab), a fund split R1.6 million between a civil-law wife and a woman who claimed a customary marriage, assessing their needs as at the payout date some 16 months later. The Constitutional Court rejected that approach. Whether someone depended on the member is fixed at the moment of death, and the fund had to decide again.
Discretion needs evidence. In the Telkom case (opens in a new tab) the fund defended the mother's R768,000 on the prospect that she might one day need frail care at R20,000 a month. The court found no medical report, no needs assessment and no enquiry into what her other son or her late husband's estate could contribute. She may well be a future dependant; that did not make the amount defensible.
What this means for your estate plan
You cannot steer a death benefit with your will. You can make it far easier for the trustees to do what you would have wanted:
1. Complete a nomination form for every pension fund, provident fund, preservation fund and retirement annuity, and update it after each marriage, divorce, birth or death.
2. Keep a written record of who you support, with amounts and reasons, especially for parents, life partners and stepchildren. That record is the evidence trustees look for.
3. Tell your family where your policies are. A benefit nobody knows about can sit unclaimed for years.
4. Plan your will around the pension, not through it. If most of your wealth sits in retirement funds, your will controls less than you think. Use your other assets, life cover or a trust to balance the picture.
5. Provide for minor children. Trustees may pay a child's share to a guardian or a beneficiary fund. A testamentary trust in your will gives you more say over how the rest of your estate is managed for them.
How Lawvero can help
Lawvero drafts wills from R450, including testamentary trusts for minor children, and offers full estate planning. We look at your whole picture, including what your retirement funds will and will not do, so your family is not left guessing. Get started at lawvero.co.za or WhatsApp us on 065 764 3430.
This article is general information, not legal advice for your situation.
Sources
Webber Wentzel: Timing of dependant status in pension death benefits (opens in a new tab)