There are times when the instructions contained in your will might not be carried out as you intended.
South Africans have always believed that they enjoy total freedom of testation – unlike many other countries where legislation imposes forced heirship, which means that the State dictates that a portion of one’s estate must devolve upon immediate family, regardless of what a person’s will states.
But, do we in South Africa really have freedom of testation?
David Knott of Private Client Holdings unpacks a few scenarios that can easily arise and which will take precedence over your own wishes – meaning that your last instructions contained in your will and testament may not be carried out as you intended.
According to Knott if you are married in community of property, you cannot bequeath your house or your car to a person as you only own a half share of this – the other half is owned by your spouse. “At best you may bequeath only your half share to the other, but that is likely to cause friction and problems of enjoyment. Your spouse is unlikely to be happy sharing the house or car with another.”
Likewise, Knott advises that if you are married in terms of the Matrimonial Property Act with accrual, upon your death a calculation must be made by law as to the growth of both estates and the partner whose estate has grown less has a claim against the other’s estate. If the claim is against the deceased spouse’s estate, this will impact the distribution in terms of the will.
“When it comes to maintenance, you cannot disinherit your spouse if the spouse was dependent upon you for support. The Maintenance of Surviving Spouses Act permits the aggrieved spouse to lodge a claim against the estate for reasonable maintenance needs.” Maintenance obligations to former spouses rarely die with you and such obligations can wipe out a considerable portion of the estate. “Beware the former spouse,” warns Knott.
Minor children and children with special needs must also be catered for before the estate can devolve upon more distant persons. (In many instances no special provision is made for minors as it is assumed that the survivor – the sole or principle heir – will provide for the children from the inherited estate.)
Lastly, once all the claims have been settled and there is a sum to be distributed, one has the Constitution to consider. “You may have wished to set up a trust, however, keep in mind that one cannot discriminate unfairly against a class of persons. It’s no longer permissible to create a trust to educate, for example, white males, Jewish females or English-speaking pupils.”
So you can see that there are lots of snags that can change the way your estate is distributed – despite your clear last wishes. “The preparation of a valid, workable will requires a skilled wordsmith fully conversant with the pitfalls ready to entrap one. In this way you can make sure your estate devolves upon the intended heirs without undue problems and strife,” concludes Knott.