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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.

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Maya Fisher-French author of Money Questions Answered

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