Abstract

Keywords

Life insurance policy; benefits; insolvent estate; third parties; exclusion; vesting; trustee; insured.

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1 Introduction

In South Africa the sequestration of an insolvent person vests all his 1

* Zingapi Mabe. LLB LLM PhD. Senior Lecturer, Faculty of Law, University of Pretoria (Hatfield Campus), South Africa. Email: zingapi.mabe@up.ac.za. ORCiD ID: https://orcid.org/0000-0002-4106-2385. Google scholar ID: https://scholar.google.com/citations?user=-HDhaUEAAAAJ&hl=en.

** Edith Mbiriri. LLB, LLM. Lecturer, Faculty of Law, University of South Africa (Pretoria Campus) South Africa. E-mail: mbirie@unisa.ac.za. ORCiD ID: https://orcid.org/ 0000-0002-2762-824X.

1 For the purpose of convenience, where relevant the male and/or female genders will be used interchangeably. No discrimination is implied or intended.

However, in collecting these assets the trustee may come across assets that belong to third parties. As all the assets in the debtor's possession upon his sequestration vest in the trustee, assets in the debtor's possession belonging to third parties also vest in the trustee of the insolvent estate. 6

6 Whenever an insolvent has acquired possession of property which is claimed by the trustee, it is deemed to belong to the insolvent estate unless the contrary is proved. See s 24(2) of the Insolvency Act; Smith, Van der Linde and Calitz Hockly's Law of Insolvency para 5.2.

driven regime to focusing on the interests of other stakeholders involved in and affected by insolvency proceedings. 8

8 Also see World Bank Report on the Treatment of the Insolvency of Natural Persons (hereafter the World Bank Report) para 76.

Certain assets, however, are excluded from the insolvent estate. 9

9 See generally, ss 82(6), 23(9), 23(7) and 23(8) of the Insolvency Act; Bertelsmann et al Mars: Law of Insolvency 212-221.

This exclusion of certain assets from the insolvent estate derives from the common-law principle that even the desperate insolvent is entitled to the basic necessities of life. 12

12 Ex parte Kroese 2015 1 SA 405 (NWM) para 67.

The trustee of an insolvent estate is therefore driven by two policies. Firstly, that of protecting certain assets from the insolvent estate for the benefit of the insolvent and third parties (where applicable); and secondly, that of collecting the maximum amount in assets to benefit creditors of the estate. 15

15 Also see the public interest policy under the aims of a good modern insolvency law as promulgated by the Cork Review Committee Review Committee Report (the Cork Report) para 198.

In South Africa third parties are further protected in the case of insurance policy benefits by the creation of a contract for the benefit of a third party. This entails that where a person has effected life or disability insurance on his life but for the benefit of a third person, in which case section 63 above would not apply, a contract for the benefit of that third person will be created. 16

16 Evans and Boraine 2005 De Jure 270-273; Evans Critical Analysis of Problem Areas 281; Pieterse v Shrosbree; Shrosbree v Love 2005 1 SA 309 (SCA) para 8 (hereafter Pieterse v Shrosbree); Warricker v Liberty Life para 10. In insurance law these

However, neither the common-law policy of exclusion mentioned above nor the contract for the benefit of a third party appears to protect the assets of the solvent spouse, who is also a third party, which vest in the trustee of the insolvent estate upon the sequestration of the estate of his spouse in terms of section 21 of the Insolvency Act.

In England and Wales the assets of the bankrupt also vest in the trustee of the bankrupt estate upon his appointment 17

17 Section 306 of the Insolvency Act, 1986 (IA 1986) as amended by the Insolvency Act, 2000 and the Enterprise Act, 2002. See also Floyd, Brumby and Knight Personal Insolvency para 6-27; Fletcher Law of Insolvency para 8-002.

In the United States of America, all prepetition property becomes the property of the estate 23

23 Section 541(a)(1) of the Bankruptcy Code (Bankruptcy Reform Act of 1978) (hereafter the Bankruptcy Code or Code).

In this article the treatment of life and other insurance policy benefits in insolvent estates and the effect on third parties in South Africa will be compared with the position in England and Wales and the United States of America.

The English and the American jurisdictions have been chosen for comparison because they are seen to be at the forefront of the shift from a creditor-friendly bankruptcy system to a more debtor-friendly system that considers the interests not only of the creditors and debtors but also all other affected stakeholders. 28

28 World Bank Report para 76.

This discussion opens with an analysis of South Africa's Long-Term Insurance Act (LTIA) and its effect on the assets belonging to third parties. The English position followed by the American bankruptcy system is then considered to show how they treat life and ill-health insurance benefits on insolvency. The discussion will conclude with a summary of findings and recommendations regarding the South African position.

2 The Long-Term Insurance Act

As indicated, the exclusion of life and other insurance from the insolvent estate in South Africa is directed by section 63 of the LTIA. Section 63 reads:

63. Protection of policy benefits under certain long-term policies.

(1) Subject to subsections (2) , (3) and (4) , the policy benefits provided or to be provided to a person under one or more -

(a) in respect of a registered insurer, assistance, life, disability or health policies; or

(b) in the case of a licensed insurer, policies written under the risk, fund risk, credit life, funeral, life annuities, individual investment or income drawdown class of life insurance business as set out in Table 1 of Schedule 2 of the Insurance Act,

in which that person or the spouse of that person is the life insured and which has or have been in force for at least three

years (or the assets acquired exclusively with those policy benefits) shall, other than for a debt secured by the policy -

(i) during his or her lifetime, not be liable to be attached or subjected to execution under a judgment of a court or form part of his or her insolvent estate; or

(ii) upon his or her death, if he or she is survived by a spouse, child, stepchild or parent, not be available for the purpose of the payment of his or her debts.

(2) The protection contemplated in subsection (1) shall apply to policy benefits and assets acquired solely with the policy benefits, for a period of five years from the date on which the policy benefits were provided.

(3) Policy benefits are only protected as provided in -

(a) subsection (1)(b) , if they devolve upon the spouse, child, step-child or parent of the person referred to in subsection (1) in the event of that person's death; and

(b) subsection (1)(a) and (b) , if the person claiming such protection is able to prove on a balance of probabilities that the protection is afforded to him or her under this section.

(4) Policy benefits are protected as provided for in subsection (1)(a) and (b) , unless it can be shown that the policy in question was taken out with the intention to defraud creditors.

Section 63 protects life, disability and other insurance policy benefits payable to the insolvent from falling into his insolvent estate. It applies in circumstances where the insolvent or his spouse is the life insured, and where the policy has been in existence for at least three years. 30

30 Section 63(1) of the LTIA. See Meskin et al Insolvency Law para 5.3.2.1; Bertelsmann et al Mars: Law of Insolvency 215.

However, where the policy was taken out with the intent to defraud creditors of the insolvent estate, section 63(4) provides that any benefit arising from a policy that can be shown to have been taken out to defraud creditors will not be protected by section 63. This provision is one of the additions to section 63 which resulted from the amendment of the section in February 2014. It appears to be aimed at ensuring that beneficiaries do not receive monies that should be used to satisfy the claims of creditors. 32

32 Mabe 2015 THRHR para 2.2.2.

Before the amendment of section 63, only R50 000 of the insurance benefit payable to the insolvent was excluded from the insolvent estate, 33

33 Section 63(2)(b) of the LTIA before the 2014 amendment. Also see Meskin et al Insolvency Law para 5.3.2.1; Bertelsmann et al Mars: Law of Insolvency 215.

the balance of the policy benefit (if any) to satisfy creditors' claims. 34

34 Shrosbree v Van Rooyen 2004 1 SA 226 (SE) 230-231; Meskin et al Insolvency Law para 5.3.2.1 B.

Section 63 applies to any insolvent person and does not distinguish between marriages in community of property 36

36 Where there is a joint estate and the spouses are jointly referred to as the "insolvent debtors". Smith, Van der Linde and Calitz Hockly's Law of Insolvency para 5.2. For a consideration of whether the trustees of an insolvent joint estate are entitled to claim the proceeds of a life insurance policy that was paid to the surviving insolvent husband who was married in community of property to his late wife, see Wentzel v Discovery Life Limited: In Re Botha v Wentzel 2021 6 SA 437 (SCA), although the court in this case failed to analyse the circumstances under which s 63 applies and consequently could not realise that s 63 applied to the facts in this case. Also see Mabe and Mbiriri 2022 PELJ and Roestoff and Boraine 2022 THRHR.

Where the insolvent policyholder nominates a third party as a beneficiary of his insurance policy benefit, a contract for the benefit of a third party is created. 41

41 Evans and Boraine 2005 De Jure 270; Evans Critical Analysis of Problem Areas 281; Pieterse v Shrosbree para 8; Warricker v Liberty Life para 10.

On the other hand, where the third party is a solvent spouse, a contract for the benefit of a third party will still be created, and on acceptance of the

benefit it will be paid to him directly. However, section 21 of the Insolvency Act provides for the vesting of the assets of the solvent spouse together with those of the insolvent spouse in the trustee of the insolvent estate upon the sequestration of the insolvent spouse. 44

44 Section 21(1) of the Act. Also see Bertelsmann et al Mars: Law of Insolvency 228; Smith, Van der Linde and Calitz Hockly's Law of Insolvency 97.

Now, section 63 of the LTIA and the common-law policy of exclusion in the context of life and other insurance policies, only protect assets belonging to an insolvent person. As indicated earlier, they do not protect assets belonging to the solvent spouse which have vested in the trustee of the insolvent estate in terms of section 21 of the Insolvency Act. It may consequently happen that the proceeds of an insurance policy payable to a solvent spouse may also vest in the insolvent estate as per section 21 of the Insolvency Act. 46

46 See Mabe 2015 THRHR para 3.2.

Section 21(2) of the Insolvency Act does provide some protection for the assets of the solvent spouse in that he may apply for the release of his assets from the trustee of the insolvent estate if he can prove release under the provision. 47

47 Section 21(2) of the Act defines five categories of property which the trustee is obliged to release to the solvent spouse. The solvent spouse bears the onus of proving her entitlement to the release of the property on one or more of these grounds. Meskin et al Insolvency Law para 5.30.2.

interim release of the solvent spouse's assets, the solvent spouse still has to secure a release of his assets from the trustee. 50

50 Meskin et al Insolvency Law para 5.30.1.2.

In this regard the solvent spouse may apply for a release under section 21(2)(c), which provides for a release of assets acquired by valid title by the solvent spouse during the marriage, against the creditors of the insolvent. 51

51 Mabe 2015 THRHR para 3.1.

However, such exclusion of the assets of the solvent spouse would be inconsistent with section 21, which was enacted to prevent collusion between spouses married out of community of property and which was declared constitutional in Harksen v Lane. 54

54 Harksen v Lane 1998 1 SA 300 (CC) held that s 21 does not infringe the provisions of the Bill of Rights. See Bertelsmann et al Mars: Law of Insolvency 230-234.

From this discussion it is evident that the insolvent debtor's interests are preferred to those of creditors where life and other insurance benefits are concerned. This is shown by the fact that upon the sequestration of the estate of a person (where all the requirements of section 63 have been met), the proceeds of that person's insurance policy are excluded from his insolvent estate and would also not be available to pay the debts of his deceased estate where the policy benefit paid out on his death. 56

56 Section 63(3)(a) of the LTIA.

with the international trend of moving away from a creditor-friendly approach to insolvency law to a more debtor-friendly approach. 57

57 Mabe 2015 THRHR para 4.

On the other hand, when it comes to the protection of the insurance policy benefits of third parties such as the solvent spouse, the South African insolvency law is shifting further away from the idea of protecting the assets of other stakeholders who are affected by insolvency proceedings. This is shown by the vesting of the assets of the solvent spouse upon the sequestration of the insolvent, and section 63's denial of protection to the solvent spouse's insurance proceeds.

Further, the protection of policy benefits against fraud is not relevant to the solvent spouse. Rather it appears to be aimed at advancing the interest of creditors of the insolvent estate.

Having established South Africa's insolvency law treatment of life and other insurance policies and the effect on third parties, the treatment of life and ill health insurance benefits in English insolvency law will be discussed.

3 The position in England and Wales

The bankruptcy procedure in England and Wales is regulated by the Insolvency Act, 1986 (IA 1986). In terms of this legislation, 58

58 Section 306 of the IA 1986.

The IA 1986 does not have an equivalent of the South African section 21, 64

64 Section 21(1) of the Insolvency Act vests the assets of the solvent spouse in the trustee of the insolvent estate upon the sequestration of the insolvent.

As in South Africa, there are exceptions to the vesting of the assets of the bankrupt in the trustee of the bankrupt estate. However, the IA 1986 does not as a general rule exclude the proceeds of life 65

65 Evans and Boraine 2005 De Jure 287.

3.1 Insurance policy on the life of the insured for his benefit

Where the bankrupt took out life insurance on his life for his benefit before the commencement of bankruptcy or even after the adjudication but failed to inform the trustee, the policy benefits are regarded as vesting assets and form part of his bankrupt estate. 68

68 Fletcher Law of Insolvency para 8-037; Tapster v Ward (1909) 101 LT 503; Barrand 1910 Journal of the Institute of Actuaries; Insolvency Service 2014 https://bit.ly/36Y9Co5 ch 31.5, Pt 6, 168.

As already mentioned, the situation is different in South Africa where the proceeds of life and disability insurance are excluded from the insolvent estate by virtue of section 63 of the LTIA 72

72 In Pieterse v Shrosbree para 12 it was held that the proceeds of the policy do not reach the hands of the trustee.

of the insolvent, but are paid directly to the beneficiary 73

73 Pieterse v Shrosbree para 12.

At first glance it appears that the treatment of life insurance policy benefits in England and Wales and South Africa differ and the insolvency process does not raise the same problems for third parties. However, as it will be shown, there are also exceptions to the vesting of life insurance policies in the estate of the bankrupt and these exceptions, as in South Africa, exclude certain third parties from protection.

3.2 Insurance policy on the life of the insured, premiums paid by some other person

Where the premiums of the policy have been paid by someone other than the bankrupt whose life is insured, 75

75 Fletcher Law of Insolvency para 8-037.

3.3 Insurance policy on the life of the insured for the benefit of a third party

Where the bankrupt took out life insurance on his life for the benefit of a third party, certain statutory exceptions to protect the proceeds of that life insurance from being used to pay the debts of the bankrupt apply. 80

80 Evans and Boraine 2005 De Jure 287.

11. Moneys payable under policy of assurance not to form part of estate of the insured.

A married woman may effect a policy upon her own life or the life of her husband for her own benefit; and the same and all benefit thereof shall enure accordingly. A policy of assurance effected by any man on his own life, and

expressed to be for the benefit of his wife, or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benefit of her husband, or of her children, or of her husband and children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts: Provided, that if it shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum equal to the premiums so paid.

Consequently, where an insurance policy is taken out for the benefit of a person other than the insured, a trust will be created for the benefit of that person. 83

83 Insolvency Service 2014 https://bit.ly/36Y9Co5 ch 31.5, Pt 6, 120.

Although section 11 is limited to the life of the insured, 87

87 Clarke Law of Insurance Contracts para 5-4A.

Section 11 was created to protect the bankrupt's immediate family 90

90 Evans and Boraine 2005 De Jure 287.

protecting the proceeds of life insurance only where the debtor is the beneficiary.

Since England and Wales do not have a section 21 95

95 Section 21 of the Insolvency Act.

Accordingly, where the insurance policy is for the benefit of a person other than the spouse or child of the deceased, section 11 does not apply and a trust will not be created in favour of that third person. As this “other third person” is not protected by the section 11 trust and does not fall under the exception to the general rule, it appears that his benefit will not be excluded from the bankrupt estate. 96

96 Unless protected by some other legislation.

If it is true that a third party other than a spouse or child does not fall under the exception to the general rule in England and Wales, the benefit will not be excluded from the bankrupt estate, which appears to be unfair to the third party. The injustice lies in the limitation of dependants to spouses and children. A dependant can also include a parent, a child who has not been officially adopted by the insured, or any family member who is financially dependent on the insured. 97

97 The view that if a policy purports to benefit both persons who fall within the scope of s 11 of the LTIA and persons who are not, that a trust for the former will be created in terms of s 11, and an express trust without any resort to the Act for the latter will also be created, is supported. See Clarke Law of Insurance Contracts para 5-4A2.

As indicated, in South Africa the contract for the benefit of a third party 98

98 Evans and Boraine 2005 De Jure 270; Evans Critical Analysis of Problem Areas 281; Pieterse v Shrosbree para 8; Warricker v Liberty Life para 10.

vest in the trustee of the estate 100

100 Section 21(1) of the Insolvency Act.

One should note that section 11 only applies to policies taken out by a married man or woman on his or her own life. 102

102 Birds Modern Insurance Law para 19.3.1.

Section 11 of the MWPA also provides for circumstances where the policy was taken out and the premiums paid with the intent to defraud the creditors of the estate. This would be the case where the policy was taken out with the intent that the beneficiaries would receive monies that would otherwise go to creditors. 104

104 Clarke Law of Insurance Contracts para 5-4A3.

However, if the trustee can establish that the trust was not created by the bankrupt in an attempt to deprive his creditors of the proceeds of the policy,

he will have no interest in the assurance policy. 107

107 Insolvency Service 2014 https://bit.ly/36Y9Co5 ch 31.5, Pt 6, 121.

4 The position in the United States of America

Individual debtors in the United States of America can make use of the Chapter 7 liquidation proceedings or the Chapter 13 reorganisation proceedings. Under Chapter 7 the debtor surrenders his property to the trustee in exchange for a discharge from his debts. 109

109 Ferriell and Janger Understanding Bankruptcy 193.

Section 541 of the Code 113

113 Section 541(a)(1) of the Bankruptcy Code.

The Code does not contain similar provisions with regard to the property of the solvent spouse, as does the South African Insolvency Act. 117

117 The Code does not have an equivalent of s 21 of the Insolvency Act.

4.1 Life insurance proceeds where the bankrupt debtor is the beneficiary

When the bankrupt debtor is the beneficiary of an unmatured life insurance policy, where he is not the owner of the policy, he only has an inchoate expectation under that life policy. 121

121 Wornick v Gaffney 544 F 3d 486 (2nd Cir 2008) 492 (hereafter Wornick v Gaffney).

The critical date to the calculation of the 180 days is the date of the life insured's death as it is the date upon which the debtor acquires the right to receive the benefit. 126

126 Ferriell and Janger Understanding Bankruptcy 201.

The Code does not specify the life insured as long as the beneficiary is the bankrupt debtor. For example, in In re Woodson 127

127 In re Woodson 839 F 2d 610 (9th Cir 1988), the debtor filed for bankruptcy a few days after the death of his wife and sought to exempt the insurance proceeds from his bankrupt estate.

In Chapter 13 cases the Code 128

128 Section 1306(a)(1) of the Bankruptcy Code.

4.2 Life insurance policies where the debtor is the owner

When the debtor is the owner of an unmatured life policy, irrespective of whether the beneficiary is the bankrupt or a third party, the policy forms part of the bankrupt estate. The trustee who steps into the shoes of the bankrupt then acquires the power of appointment, in which case he has the right to change the beneficiaries because it is an inchoate expectation. 132

132 Wornick v Gaffney 490.

This is the same as the South African stipulatio alteri, where third parties have only a "spes" that when the policy matures they can accept the benefit. However, before it matures they do not have legal rights because the trustee can always change the beneficiary since he steps into the shoes of the insolvent. Thus, a third party is not protected if the policy has not matured, because as in South Africa it is only a "spes" that in the future the third party will acquire a legal right. Consequently, since the right has not materialised, it is only an expectation. 135

135 Ferriell and Janger Understanding Bankruptcy 195.

Therefore, although an unmatured policy forms part of a bankrupt estate, the debtor is allowed to exempt it from the estate in terms of section 522 of the Code. 136

136 Section 522(d)(7) of the Bankruptcy Code, which relates to an unmatured life insurance contract owned by the debtor, other than a credit life insurance contract. The federal exemptions allow a debtor to exempt up to $12,625 (R181 619,97) of the cash value of a whole life insurance policy.

State law exemptions are largely similar, with a few states being notable for being creditor-friendly or debtor-friendly. 138

138 Ferriell and Janger Understanding Bankruptcy 391.

The exemptions protect the proceeds from the deceased's debts but not from the beneficiary's bankrupt estate. 143

143 In re Lush 544 BR 575 (Bankr ND Miss 2015) 586.

Section 85-3-11(2)(b) of the Mississippi Code provides that any premiums paid with the intent to defraud creditors shall inure to the benefit of the creditors. 144

144 Section 85-3-11(2)(b) of the Mississippi Code.

Generally in the United States of America when the debtor files a petition the right he has under a life insurance policy to surrender the policy for cash also vests in the estate. In Wornick v Gaffney the court held that section 3212 of the New York Insurance Law 146

146 Section 3212 of the New York Insurance Law (ch 28 of McKinney's Consolidated Laws of New York Annotated, 1984).

5 Conclusion

The exclusion of the proceeds of life and disability insurance from the insolvent estate is intended to protect certain assets to benefit the insolvent

and certain third parties. Where the insolvent is concerned it appears to continue to do so in South Africa, in the United States of America and in England and Wales. However, where third parties are concerned the positions in all three countries differ.

As indicated, in South Africa the proceeds of life and disability insurance where the insolvent is the beneficiary, and his solvent spouse is the life insured, are excluded from the insolvent estate. The position is the same in England and Wales, where the proceeds of life and ill health insurance where the bankrupt is the beneficiary are also excluded from the bankrupt estate in terms of section 11 of the MWPA. In the United States of America the benefits are excluded only if they accrue to the insolvent after 180 days from the date of filing the petition in the case of Chapter 7. Where the debtor files a Chapter 13 petition the benefits fall into the insolvent estate. Further, the Bankruptcy Code does not specify if the debtor is the life insured, only that he is the beneficiary of a life insurance policy.

Where the beneficiary to the proceeds of life or disability insurance is a third party, in a South African insolvent estate section 63 of the LTIA does not apply, but a contract for the benefit of that third party is created. In terms of this contract, the proceeds of the life and disability insurance are paid directly to the third party without vesting in the trustee of the insolvent estate.

However, where the third party is a solvent spouse the contract for the benefit of a third party is of no help as the assets of the solvent spouse still vest in the trustee of the insolvent estate. As previously suggested, the vesting of the assets of the solvent spouse may be prevented by the inclusion in the insolvency legislation of a provision excluding these assets. Although this would mean that the courts would have to reconsider the Harksen v Lane judgment, it would nonetheless bring section 21 in line with the policy to protect the assets of third parties in the insolvent's possession.

As England and Wales, and the United States of America do not have a section 21 equivalent, they appear not to share the same problems as South Africa in this respect. As a result, the spouse of the bankrupt seems to be better protected by section 11 of the MWPA in England and Wales, which creates a trust to control the destination of the proceeds of a life policy. In the United States of America, the property of the solvent (non-debtor) spouse is expressly protected.

As indicated, however, section 11 only protects certain dependents, the spouse and children of the bankrupt. It appears that it does not cater for other third parties who might have been dependent on the bankrupt and whom the bankrupt might have intended to benefit from his insurance policy. If this is true and some other legislation does not protect these third parties' interests, they appear to be disadvantaged.

Furthermore, the distinction between married and unmarried persons in section 11 seems unfair to the latter group. A provision protecting the insurance benefits of unmarried people, especially where children are beneficiaries, should be considered in England and Wales.

Although South Africa and England and Wales both make some provision for the protection of the assets of third parties that are in the insolvent's possession during his sequestration, it is clear that the interests of third parties in the form of the solvent spouse (in South Africa), and dependants that are not a child or a spouse (in England and Wales) are not a priority. In both countries the priority is given to the interests of the insolvent debtor. Although this seems to be following the international trend of moving away from a creditor-friendly approach to insolvency to a more debtor-friendly approach, the interests of other parties that are indirectly involved in the sequestration of the debtor should also be taken into account and protected.

The American bankruptcy policy remains in the lead in the treatment of life insurance policy benefits under Chapter 7 bankruptcy proceedings and the balancing of the interests of all stakeholders affected by the proceedings. When the beneficiary is the bankrupt, the 180-days rule applies and the life insurance benefit forms part of the estate, unless if the benefit accrues after the 180 days, then it becomes part of the estate. However, if the owner of the policy is bankrupt and the nominated beneficiary is a third party, the benefit is paid to such a third-party beneficiary directly, irrespective of who is the third party.

It is hoped that as there is currently a proliferation of case law pointing to a shift towards an insolvency process that is more friendly to the needs of society as a whole, and not only the interest of creditors and debtors in South Africa, the need to protect the interest of the solvent spouse (as a member of society) where his insurance policy benefits are concerned will be answered.

Bibliography

Literature

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Case law

South Africa

Ex parte Kroese 2015 1 SA 405 (NWM)

Harksen v Lane 1998 1 SA 300 (CC)

Wentzel v Discovery Life Limited: In Re Botha v Wentzel 2021 6 SA 437 (SCA)

Oshry v Feldman 2010 6 SA 19 (SCA)

Pieterse v Shrosbree, Shrosbree Love 2005 1 SA 309 (SCA)

Shrosbree v Van Rooyen 2004 1 SA 226 (SE)

South African Restructuring and Insolvency Practitioners Association v Minister of Justice and Constitutional Development 2015 2 SA 430 (WCC)

Warricker v Liberty Life Association of Africa Ltd 2004 3 SA 445 (SE)

Wessels v De Jager 2000 4 SA 924 (SCA)

United Kingdom

Tapster v Ward (1909) 101 LT 503

United States of America

Carroll v Logan 735 F 3d 147 (4th Cir 2013)

In Matter of Murdock 547 BR 475 (Bankr SD Ga 2015)

In re Greenberg 271 F 258 (2nd Cir 1921)

In re Lush 544 BR 575 (Bankr ND Miss 2015)

In re Supreme Beef Processors, Inc 468 F 3d 248 (5th Cir 2006)

In re Woodson 839 F 2d 610 (9th Cir 1988)

Wornick v Gaffney 544 F 3d 486 (2nd Cir 2008)

Legislation

South Africa

Financial Services Laws General Amendment Act 45 of 2013

Long Term Insurance Act 52 of 1998

Insolvency Act 24 of 1936

Insurance Act 27 of 1943

Insurance Act 18 of 2017

United Kingdom

Enterprise Act, 2002

Insolvency Act, 1986

Insolvency Act, 2000

Law Reform (Married Women and Tortfeasors) Act, 1935

Married Woman's Property Act, 1882

Statute Law (Repeals) Act, 1969

United States of America

Bankruptcy Code (Bankruptcy Reform Act of 1978)

Mississippi Code of 1972, Annotated

New York Insurance Law (ch 28 of the McKinney's Consolidated Laws of New York, 1984)

Internet sources

Insolvency Service date unknown https://bit.ly/3hOBcdG

Insolvency Service date unknown Guide to Bankruptcy https://bit.ly/3hOBcdG accessed 14 June 2023

Insolvency Service 2014 https://bit.ly/36Y9Co5

Insolvency Service 2014 Technical Manual https://bit.ly/36Y9Co5 accessed 14 June 2023

List of Abbreviations