Vandana Maharaj & Associates

Where there’s a Will…

“Life is unpredictable and control is just an illusion.”

Do not let this be the theme of your death. We have so many choices available to us; why not choose to be in control of what happens after we die? Most people spend their lives building something for their future generations, but spend very little time focusing on securing what happens to what they built after they pass on.

Drafting a will is an effective way of securing your legacy.


What is a will?

A will is a written document that sets out how a person wishes to distribute their assets and property upon their death.

Who can make a will?

Any person over the age of 16, who is not mentally ill or unable to appreciate the consequences of making a will.

The importance of having a will

A will enables you to decide who will inherit from your estate, what they will inherit and how much of it. Should you not have a will this power will not be in your control. Your estate will instead be divided according to the laws of intestate succession. In this instance, for example, you will not be able to specify who gets your house or jewellery or cars. In terms of the rules of intestate succession, your entire estate will simply be divided amongst your heirs as determined by law.

There are many cases where heirs and family members argue and cause disputes because they disagree on what the deceased’s intentions were regarding his/ her property. Having a will reduces the likelihood of disputes arising. Usually the executor in an estate will arrange a meeting with all the heirs and officially read the will and explain its contents.

This does not mean that having a will completely eliminates the likelihood of disputes, however a will can include a clause which provides for dispute resolution. For example, the dispute can be referred to an attorney or mediator, whose decision will be final.

When drafting a will, you are able to choose who your executor will be, this person will be responsible for everything regarding your estate, and should therefore be someone you trust. Where there is no will, the intestate heirs will be required to nominate an executor. This may cause unnecessary delays and disputes amongst heirs as they may not always agree on who should be nominated.

The Master of the High Court has the discretion to request that security be provided in certain instances. This security will have to be provided by the executor of the estate. However it is possible to include a clause in a will whereby you exempt any executor appointed in terms of your will from providing such security. Without a will, the executor will have to provide security if it is requested.

When considering who will inherit your property the obvious concern is whether that person’s spouse will also be entitled to that property. In cases where people do not have a will they have no control over whether the inheritance will form part of any joint estate of the heirs. In terms of a will you are able to exclude any inheritance from forming part of any existing or future marriage in community of property or accrual systems. For example, where an heir (married in community of property) inherits from your estate and subsequently gets divorced, their spouse will not be entitled to receive half of the inheritance because of the exclusion clause in the will.

Other important elements that can be included in a will are instructions regarding how you wish your last rites to be performed, as well as appointing guardians for any minor children. This is often overlooked but has the potential to cause major problems should it not be provided for. There are countless examples of family members including grandparents who eventually have to seek the assistance of the court to determine and make a decision regarding guardianship, access and primary residence of minor children.

Status of Hindu and Muslim religious marriages and cohabitation

In terms of recent case law Hindu and Muslim religious marriages are now recognised in terms of the rights regarding inheritance. This means that a spouse who is married only in terms of Hindu or Muslim rites may still inherit from the deceased’s estate.

There is a common misconception that the law recognises what people refer to as a “common law spouse”. Under South African law – there is no such term as a “common law spouse”. The situations where a couple in a monogamous relationship live together with a certain measure of permanence and stability but are not legally married, is referred to as cohabitation. There are several requirements that need to be met before a relationship is deemed to be cohabitation. However South African courts do not recognise this as a legal relationship, which means that a partner in such a relationship will not inherit in terms of intestate succession. It is therefore beneficial to people in this situation to make a will in order to protect the interests of their partner.

Death is an eventuality that we may not want to think about, however from this article you will realise that preparing for it can avoid many unfavourable situations from arising. That said, it is imperative to have a will drafted by a professional who will have your best interests in mind and ensure that your wishes and intentions are kept paramount. Simply filling out a mass produced form type of will may result in as many if not more confusing and problematic situations after your death. A professional will ensure that in addition to complying with the rules and regulations of a valid will, you and your family’s unique needs are catered for.

Written by: Vandana Maharaj and Trushantha Maharaj

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