A valid Last Will and Testament

26 Oct 2020 10:00 am by Fadia Arnold

A valid Last Will and Testament: National Wills Week – 26 to 30 October 2020

Fadia Arnold gives an overview of why having a valid Last Will and Testament is important; how to get a valid one; the unfortunate consequences of not having one; intestate succession; and a comment on the recent Western Cape High Court case in which it was held that unmarried life partners of deceased persons can inherit from the deceased estate.

Written by Fadia Arnold, Attorney at Arnold Law Legal Consultancy, for LexisNexis South Africa

Introduction

As we head into the yearly commemoration of National Wills Week in South Africa, it is significantly imperative to educate one’s self on the importance of having a Last Will and Testament in place as well as what the consequences for family  members or unmarried life partners would be if their loved ones passed on without a will or with an outdated will not reflecting their true and updated beneficiary wishes prior to death. Now more than ever, whilst we are in a global pandemic and individuals are still succumbing to the coronavirus disease with no current approved vaccination, ensuring your Last Will and Testament is drafted and updated is particularly necessary.

The importance of having a valid Last Will and Testament

Any person of 16 years and over is free to make a will in order to determine how his or her estate should devolve upon his or her death. It is imperative that individuals who do not have a will or have an outdated will, or where they wish to amend the will in terms of beneficiaries, do not simply download a template from the internet. These templates may not reflect crucial South African law and process or may simply be too plain and not include the necessary wording required if your will for example would contain crucial instructions in terms of trusts and usufructs on homes.

It is strongly advisable that an Attorney assist you in tailoring your Last Will and Testament to your specific wishes and instructions to ensure that when you pass away, your instructions will be executed as per your wishes and cannot be contested. Another route one can take if one wishes not to utilize the services of an Attorney is to utilize their bank. Many banks have departments dedicated to this very service and it is often a free service. However, if the latter service is utilized it is still highly recommended that an attorney with experience in drafting wills and administering estates still peruse the will to ensure it is not just a template but rather a Last Will and Testament that is tailored to the wishes of the testator.

The consequences of not having a Last Will and Testament

Individuals who pass away without leaving a Last Will and Testament will have their estate dealt with in respect of the Intestate Succession Act 81 of 1987. This means that no instructions have been left by the individual who has passed on as to who will inherit from his or her estate, assuming there is a monetary, property or other benefit to inherit.

Who can inherit in terms of the Intestate Succession Act?

The Intestate Succession Act provides for an intestate estate to be divided, usually, amongst the deceased’s surviving spouse, children, parents or siblings and in order of preference as per below:

  • The spouse of the deceased
  • The children of the deceased
  • The parents of the deceased (only if the deceased died without a surviving spouse or children)
  • The siblings of the deceased (only if one or both parents are predeceased, and the deceased had no children)

The abovementioned preferences and orders were in place long before South Africans were given rights to inherit in circumstances which did not only reflect the traditional familial model but also other beneficiaries such as families inclusive of multiple spouses as well as unmarried life partners.

Accordingly, the Intestate Succession Act is to be read in such a way that it accommodates cases where the deceased was a husband in polygamous customary union. A spouse in a subsisting customary marriage which is recognized in terms of section 2 of the Recognition of Customary Marriages Act, 120 of 1998 is also a spouse for intestate succession purposes. Also, important to note in terms of multiple wives in customary marriages is that where the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.

Can unmarried life partners of deceased persons inherit from the deceased estate?

Up until recently, an unmarried life partner or co-habitant of the deceased had no claim to the deceased’s estate. Pleasingly co-incidental, the Western Cape High Court ruled on this issue in October 2020, the very month the nation commemorates National Wills Week. The High Court has ruled that the Intestate Succession Act is unconstitutional because it bars unmarried partners in romantic relationships from inheriting from their deceased partner.

The abovementioned decision came after Jane Bwanya (“Bwanya”), a former domestic worker who had been in a relationship with a male for numerous years laid claim to his sizable estate due to the fact that he had left his estate to his mother who had predeceased him. The claim which was initially rejected by the Master’s Office then succeeded in the Western Cape High Court. This decision is however subject to confirmation by the Constitutional Court.

Conclusion

To avoid litigation, it is wise to ensure one’s family members all have valid wills and that unmarried couples too invest in a will, so the surviving partner is not suddenly left destitute.

Fadia Arnold

Arnold Law Legal Consultancy