You are Here > Home > Financial planning > Is your will worth the paper it’s written on?

Is your will worth the paper it’s written on?

Mar 11, 2014

There are times when the instructions contained in your will might not be carried out as you intended.

Last will and testamentSouth 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.

Marriage contracts

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.

Maintenance

“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.

Dependants

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.)

Trusts

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.

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *

Maya Fisher-French author of Money Questions Answered

Previous Articles

GEPF establishes complaints handling office

If you are struggling to get your claims processed or not receiving your benefits, help is at hand with the recent establishment of the Government Employees Pension Ombud (GEPO). The state is the largest employer in the country, and the Government Employees Pension...

More households supporting unemployed family

For many working South Africans, the pressure of financially supporting friends and family is unrelenting. Most of us have either experienced a job loss or have a family member who lost an income due to the extended Covid-19 lockdown. It is not surprising then that...

What is screen scraping and is it safe?

Screen scraping can be used by criminals to steal data, but financial services companies are increasingly making legitimate use of this too. Angelique Ruzicka investigates what the process entails and how consumers can protect themselves. Screen scraping can be hugely...

Are banks putting customers first?

Banks were in the spotlight recently with the release of the annual report by the Ombudsman for Banking Services (OBS) and feedback from the Financial Sector Conduct Authority (FSCA) regarding the banks’ adherence to the Conduct Standard. The draft Conduct Standard...

Should women celebrate community of property rights?

There has been much celebration around the protection of women in customary marriages with President Ramaphosa recently signing into law the amended Recognition of Customary Marriages Act. However, are these women fully aware of the implications, especially around...

Five tax myths many employees still believe

Tanya Tosen, Tax and Remuneration Specialist at Remuneration Consultants, addresses five tax myths that have become popular over the years. Many employees don't understand the complex tax calculations that payroll applies to their earnings each month and often...

Relief for struggling restaurants

Soft loans and payment holidays are available for restaurants still battling to survive the pandemic. At the beginning of May, my favourite local coffee shop closed its doors after 20 years of trading. My neighbourhood shopping centre, which caters to many “mom and...

Money and divorce

David Thomson, Senior Legal Adviser at Sanlam Trust, shares some practical tips about the financial side of divorce. The news of Bill and Melinda Gates filing for divorce after 27 years of marriage sent shockwaves through the philanthropic world. The couple is worth...

Lack of savings leaves SA vulnerable

A lack of emergency savings left households vulnerable to the economic shock of Covid-19. The last five years have been tough for South African consumers as salaries failed to keep up with inflation, unemployment grew, and debt levels increased. This left us extremely...

Beware: fraudsters are everywhere

Ramesh Ramdeen, Head of Fraud at FNB Wealth and Investments and Ashburton Investments outlines some key things to look out for to avoid becoming the victim of fraudsters. Investment and financial fraud is on the rise across the world. Each day thousands of people are...

Pin It on Pinterest

Share This