The Payout of a Life Insurance Policy into an Unrehabilitated Insolvent's Estate: Malcolm Wentzel v Discovery Life Limited: In Re Botha v Wentzel (1001/19) [2020] ZASCA 121 (2 October 2020)

• Published in: Potchefstroom electronic law journal Vol. 25; no. 1; pp. 1 - 27
• Main Authors: Mabe, Zingapi, Mbiriri, Edith
• Format: Journal Article
• Language: English
• Published: North-West University (Potchefstroom Campus) 2022
• Subjects: Law; vesting; insolvent; insolvent estate; community of property; life insurance policy; insurer; Sequestration; trustee; stipulatio alter; protection of policy benefits
• ISSN: 1727-3781; 1727-3781
• DOI: 10.17159/1727-3781/2022/v25i0a11486

One of the consequences of sequestration is the vesting of the property of an insolvent person in the trustee of the insolvent estate. However, not all the property of the insolvent person vests in the trustee as there are some exceptions. Under section 63 of the Long-Term Insurance Act 52 of 1998, life insurance policy benefits are excluded from forming part of the insolvent estate and thus do not vest in the trustee and are unavailable for the payments of the debts of the insolvent. The exclusion of these benefits diverts property from the insolvent estate and, consequently, the creditors who could benefit from the property. This note discusses Malcolm Wentzel v Discovery Life Limited: In Re Botha v Wentzel (1001/19) [2020] ZASCA 121 (2 October 2020), and considers whether a beneficiary of a life insurance policy payout is required to hand over such payment to the trustee of his insolvent estate. Further, it highlights the conflicting provisions between insolvency legislation and insurance legislation and examines the effects of section 63 on an insolvent estate where the insolvent was married in community of property.