You are Here > Home > Financial planning > Am I obliged to leave my estate to my family?

Am I obliged to leave my estate to my family?

May 7, 2015

By David Knott of Private Client Trust, the fiduciary services division of Private Client Holdings, and a member of the Fiduciary Institute of South Africa

signing document 1In many countries around the world there are forced heirship laws in place which have evolved over many years of custom before eventually being legislated into law.

South Africa has no similar legislation forcing you to leave any of your estate to any designated group.  In theory therefore, you are free to bequeath your estate to whomever you choose.

However, this does not mean that your entire estate will devolve upon the named beneficiaries in terms of your Will, as there are certain individuals who may well have a claim against the estate.

Firstly, a parent is obliged to maintain his minor children, children suffering under a disability and even major children in certain circumstances. Although not that common, this obligation to support may even extend to parents and other dependants of the deceased who may have depended upon the deceased for maintenance.

The spouse of the deceased is also protected by the Maintenance of Surviving Spouses Act. In terms of the Act, the spouse must prove to the executor of the estate that the award that flows to him or her, together with his or her own income, is insufficient to maintain them to the standard that the deceased might have done.

Our courts have decided that where a heterosexual couple merely live together without the benefits and obligations of marriage, the surviving partner does not qualify as a spouse and could therefore not claim maintenance. On the other hand, there is a decided case confirming that the surviving partner in a same-sex relationship would be considered a spouse. However this case was heard before the adoption of the Civil Union Act in 2006 when it was not permissible for same-sex couples to enter into a marriage-like arrangement. It would be interesting if that case were to be challenged now.

The computation of any maintenance claim either by a child, a dependant or a surviving spouse is always the subject of negotiation by the claimant and the executor. The executor is duty bound to act in the best interests of the heirs to the estate and cannot therefore merely accede to inflated or unreasonable claims, whereas the claimant is obviously seeking the best possible settlement. This negotiation is never easy, particularly where a second marriage and second families might be involved and the relationships are not good.

The following claims must all be settled before heirs to the estate may benefit:

  • creditors
  • a divorced spouse entitled to maintenance
  • a spouse married in community of property who must take his or her one half share
  • any claim for accrual in terms of the Matrimonial Property Act

From all of this it is clear that one cannot merely execute a Will in haste before dashing off on holiday.

After assessing your situation objectively, you need to consult with an expert who is fully conversant with these pitfalls, and many others.


Submit a Comment

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

Maya Fisher-French author of Money Questions Answered

Previous Articles

Self-service facility for GEPF members

Technology is making it easier for GEPF members and pensioners to keep track of their pension information and claims process. By downloading the new GEPF self-service mobile app onto your device, you can remove the frustration of standing in long queues at GEPF...

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...

Pin It on Pinterest

Share This