Millions of South Africans do not have a valid will in place. This could lead to some unintended consequences on their death that affect the loved ones they leave behind.
National Wills Week promotes drafting a will
National Wills Week, an initiative started in 2007, falls between 26 and 30 October this year. Started by the Law Society of South Africa, it puts a spotlight on the importance of having a will. The initiative encourages South Africans to use the services of a legal practitioner to draft a free basic will. A list of participating attorneys is available on the Law Society website.
We never know when it’s our time to go
While we might not want to think about death and the impact it would have on our families, the reality is that death can occur unexpectedly, leaving no time to plan. If the global Covid-19 pandemic has taught us anything, it is that life is fragile and transient.
Why it’s important to have will in place
The purpose of a will is to instruct how, to whom and by whom the assets in your estate are to be distributed. Should you die without a valid will, the Master of the High Court appoints an executor to distribute your assets. Your assets would be distributed according to the rules of intestate succession, and would be divided amongst a surviving spouse and children or, if none, surviving parents or siblings.
What would happen if you were to die without a will in place?
Let’s say for example, Mr John Smith dies without a will, and leaves behind his long-term live-in partner, Ms Jane Jones. John intended for Jane to inherit the home they shared and to continue living in it. How would John’s estate, consisting of only his residential property, be divided if he dies intestate?
The following are common scenarios that can arise and the consequences of dying without a will.
Scenario 1: John dies with no surviving family or relatives
This would mean he dies without an heir. Jane, as an opposite-sex unmarried partner, is currently excluded from inheriting under the Intestate Succession Act. (There is a recent judgment which declared Section 1(1) of the Act, which deals with this issue, unconstitutional and invalid. However, such invalidity is yet to be corrected by the legislature.)
As it stands, John’s assets could be liquidated, and the proceeds thereof paid to the Guardian’s Fund and ultimately to the state. Although Jane may institute a maintenance claim against John’s estate, the success of such a claim is not guaranteed. The onus would be on her to prove that John was legally obliged to financially maintain her during their relationship. Jane may lose her home.
Scenario 2: John has surviving children from a previous marriage
John’s assets would be divided equally between any surviving children. If John had no children but had surviving parents, they would be next in line to inherit. If no parents were alive, but he had a surviving sibling, the sibling would inherit. Again, Jane may claim maintenance against the estate, as in the above scenario, but may stand to lose her home.
Scenario 3: John and Jane formalised their relationship
Assume John had formalised his relationship with Jane, either by marrying her or by entering into a registered civil partnership. Even if this is the case, John’s not having a will may still see a poor result for Jane. Depending on their matrimonial regime, the residential property could be divided equally between Jane and John’s surviving children. Jane may still lose her home.
Scenario 4: John’s will is not properly executed
Ensuring that a will is correctly drafted and signed is very important. If John had a will, and the will was found to be invalid, he would be considered as dying intestate and the intestate rules would apply. Or if Jane had witnessed the will, she may be disqualified from receiving any benefit from the will. Jane may lose her home.
Take the first step towards drafting your will today
The above scenarios highlight the importance of having a properly drafted will in place. Without a will, your assets might go to someone you may not have intended to benefit. A loved one could be left destitute. An executor might be appointed that you would not have chosen yourself. Unnecessary delays could be experienced and additional costs incurred. Consider your loved ones and consult a legal practitioner together with your financial planner to get a will in place.
