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WILLS AND ESTATES - FAQ's             Back to home page

 

Having a will ensures that all your wishes are listed in a clear and unambiguous way and  avoids having your heirs involved in expensive litigation in an effort to clarify what you meant in a particular clause. If you die without leaving a will drawn up as required by law, you are said to die ‘intestate’ and the rules of intestate succession will determine who acquires ownership of the property you leave behind. By drawing up a will you can arrange for your assets to be distributed among your relatives or friends in the proportions of your choice rather than those laid down by the rules of intestate succession.

Do not rely on commonly printed forms readily available these days unless your estate is a very simple one. Expert advice is not as costly as is generally believed and it will reduce the possibility of ambiguities that may require interpretation by the courts. Apart from anything else, an expert may be able to foresee contingencies that had not occurred to you and so ensure you make provisions for them, and may be able to suggest ways in which the estate duty payable to the state can be reduced. (Estate duty is payable only on deceased estates worth more than R3,5m) When you draw up your will, it is therefore advisable to seek expert advice from an attorney.

  1. Who may make a will?
  2. Who may benefit under a will?
  3. What are the formalities for making a valid will?
  4. What must be contained in a will?
  5. Fideicommissa, usufructs and trusts – what do these terms mean?
  6. On what grounds can a will be challenged?
  7. How does an illiterate or very ill testator make a will?
  8. In what way can a will be revoked?
  9. What happens if someone dies without leaving a will?
  10. Intestacy – who gets what?
  11. Who can be appointed as executor to deal with the administration of a estate and what is the role of the executor?
  12. What should a person know to create greater confidence in the process of estate administration?
  13. What takes place in relation to the estate account?
  14. What about Value Added Tax, Capital Gains Tax and Income Tax?
  15. When is estate duty payable and do heirs have a choice to repudiate or renounce a bequest or inheritance?
  16. What are the factors that delay the winding up of an estate and how can the process be speeded up ?
  17. What are the factors that delay the winding up of an estate and how can the process be speeded up ?
  18. How does the Law define a dependant i.t.o the Pension Funds Act?
  19. Can you please provide a brief overview Of Islamic Inheritance From A South African Law Perspective?

 

 

1. Who may make a will?

 

  • The Wills Act,1953, which came into force on 1 January 1954, lays down that anyone of at least 16 years of age may make a will if he/she is mentally capable of appreciating the nature and effect of his/her act.
  • Essentially what is required is that the testator must, at the time of drawing up his/her will, have been of a sound mind and memory. Although his/her memory need not be perfect, he/she must have been able to remember the property he/she was about to bequeath, the manner of its distribution and the persons to whom he wished to give it. Also he/she must have been able to understand that they were making a will.
  • Should anyone allege that the testator was mentally incapable of making a will, the burden of proof rests on the person who alleges that the testator was incapable.    

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2. Who may benefit under a will?

 

Generally you can distribute your estate as you please, but there are some people who may not benefit from a will. They are:

  • Unworthy

The most obvious case here is the person who murders the testator. Also people who use fraud or duress to prevent a testator from changing his will, or making a will if he has not previously done so, are disqualified from deriving benefit either under the old will, or under the rules relating to intestacy. This rule is designed to prevent, say, an intestate heir from stopping a person making a will when he knows that the prospective testator wishes to exclude him from it.

  • Guardian

Secondly it was held in Mostert v The Master (1878) that anyone who marries a minor without the consent of the minor’s parent or guardian cannot benefit under a will even if the minor was a major when making that will, or even if the consent to the marriage was given after the marriage.

  • Participants

Thirdly, a number of prohibitions relate to people who wrote out the will for the testator or who witness it or participate in a number of other ways in the formalities of its execution. The person who writes a will for the testator cannot derive any benefit from it unless the testator confirms the bequest. The prohibition extends only to the actual writer, so anyone who dictates the will or writes out a draft that is subsequently typed by someone else, may none the less benefit under a will.

  • Witnesses

The Wills Act provides that the witnesses to the will (the persons who sign the will in the presence and at the request of the testator) can neither take any benefit under the will, nor be nominated as an executor of the estate. The same applies to his or he spouse.      

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3. What are the formalities for making a valid will?

When making a will it is vital to ensure that your will lists all your wishes in a clear and unambiguous way and must bear all the legal requirements laid out in the Wills Act.

  • For a will executed after 1January 1954, the essential requirement is that the will be signed by the testator at the end thereof and that the signature be witnessed by 2 or more present at the same time, who must then sign the will in the presence of the testator and of each other.
  • Should the will consist of more than one page, then each page must be signed by the testator and the same witnesses , who may sign anywhere on a page, provided that the signature of the testator on the final page appears at the end of the will.
  • The witnesses must be persons 14 years or older, who at the time were competent to give evidence in a court of law . Generally speaking, the law will consider them to be competent if, at the time, they were not insane, drunk or otherwise without sufficient understanding to be aware of their actions.
  • Any deletion, addition, alteration or interlineation made in the will after it was executed is invalid unless the deletion itself is accompanied by all the formalities necessary for the execution of a valid will. Any codicil of the will-in addition that the testator wishes to add after the execution of the will - must also be completed with all the formalities required for completing an original will.

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4. What must be contained in a will?

It is difficult to state anything definite, for individual circumstances are always different. In general, however, the following should be included:

  • Executor

The property of a deceased person does not go directly to heirs or legatees, but to an executor, who pays the debts and distributes and distributes what is left to the beneficiaries named in the will. It is usual – and indeed wise – to appoint an executor in your will. However it is not essential, for if you fail to report an executor, or the person appointed declines to act as executor or is dead, the Master of the High Court can appoint someone else to act. The executor will generally by the Master to provide him with some security – a cash deposit or other guarantees that he/she will perform their duties properly. This can be inconvenient, and it is, therefore usual practise to exempt an executor from giving security to the Master.

  • Legacies

After providing for legacies, you can leave the residue of your estate (the portion left after the legacies and duties have been paid) to any heirs. Should you decide not to leave the residue to a particular person or persons, this will be distributed according to the rules relating to intestacy. It is almost always wise, therefore, to appoint an heir or heirs to the residue of the state.

  • Children

In drawing up a will, it is important to be as clear as possible regarding the use of words such as ‘children’. Although the word ‘children’ will be taken to include a child not yet born at the time of the testator’s death, should a man make a bequest to his children where there are both legitimate and illegitimate children, the normal inference is that only the legitimate children are referred to. Remember, too, that if one of your children – who stands to benefit under your will – dies before you, the lawful descendants of the child will be entitled to succeed to the benefit, unless you indicate to the contrary in your will.     

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5. Fideicommissa, usufructs and trusts – what do these terms mean?

There are a number of ways in which the testator can provide for substitution of beneficiaries. That is to say, the testator leaves the property to one person who will not be free to dispose of it because the property must, on the occurrence of a certain event, pass on to someone else.

  • In a usufruct, the same person remains the owner throughout, but someone else has the rights and enjoyment of the property. The husband may wish that his wife lives in his house until her death, but wants the property to ultimately go to the children, with the rights and enjoyment to the wife. The wife, the usufructuary, would have a usufruct over the property.
  • A fideicommissum consists of two or more substitutions of a different owner in the same property. The central idea here is that a farm or other asset should be kept within the same family, and such an arrangement is known as a fideicommissum. It was possible to keep the same property in the family for generations in this way, but in 1965 the legislature provided that only two such substitutions could take place.
  • A Trust is a further way by which a testator can tie up an estate. A testator with a large estate may take the precaution by creating a trust in case he dies while his child is still relatively young and inexperienced. It is his intention that his child inherits, but only at a certain age or the happening of a certain event. He leaves the property to a named trustee in his will with directions that the trustee care for the estate, invest the money prudently and profitably, and, for example, use the proceeds, at his discretion, for the maintenance and education of the child named in the will. Thus when the child reaches the age stipulated, or the event happens – for example the child gets married or turns 21 – the money is paid to him/her. In this case the trustee becomes, in strict law, the owner of the property, but is bound to look after it and use it in the manner that is provided for in the will.

Do not draw up a will that creates a usufruct, fideicommissum or a trust without asking expert advice from an attorney who can also also draw up the will for you.     

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6. On what grounds can a will be challenged?

Overturning a will is a difficult and often fruitless exercise because the burden of proof rests with the person challenging the will.

A will that appears to be valid – that is, contains the necessary signatures and so on – will be accepted as valid by the Master of the High Court and the courts until the contrary is proved. The onus rests on the person challenging the will to show that it is flawed – and this can be difficult. If the will was made a substantial period of time before the testator’s death – during which time he could have changed his will, but he did not do so – the courts are very reluctant to find that the will was not an expression of his wishes.

Consult an attorney if you believe that the will can be challenged under one of the following grounds:

  • Insanity – if the will was made by a person under an insane illusion.
  • Formalities – if the document that appears to be the will has not been executed with the formalities laid down by law
  • Forgery – if the will can be shown to be a forgery or if the testator was mistaken about the document he signed, for example, if he thought he was selling a contract to sell his farm, but in fact the document was a will bequeathing his farm to someone else.
  • Duress, fraud, or influence – a will must be an expression of the testator’s wishes, not be the wishes of some other person. Where a testator signs the will under duress – for example, because he is being threatened or blackmailed – the will is an expression of the wishes of the threatening person, not the wishes of the testator. The same applies to fraud: for example, where the testator is misled to believe that certain relatives are dead or unworthy to inherit – and so leaves them out of his will. Similarly, where the testator is under the influence of another person – for example, a timorous invalid in the care of a domineering mother – the will expresses the mind of the person having undue influence over the testator.  

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7. How does an illiterate or very ill testator make a will?

 

  • Where a testator is illiterate and cannot sign, or is to ill to do so (he may be unable to write, but able to speak, for example), the law requires that he either sign the will by making a mark (if the testator is illiterate, for instance) or direct another person to sign the will on his behalf. That person must then, in the presence of the testator and the witnesses and at his direction, sign the will.
  • Furthermore, a certificate has to be attached at the end of the will in which a magistrate, Justice of the Peace, Commissioner of Oaths, or notary public certifies that he/she has satisfied him/herself as to the identity of the testator, and that the will so signed is the will of the testator.
  • If the will consists of more than one page, it must be signed by the Magistrate, Justice of the Peace, Commissioner of Oaths or notary public on each page. This certificate must be attached before the death of the testator, and it would be wise to ensure that it is attached at the same time as the will is signed (either by mark or by a person signing on the testator’s behalf) by the testator and the witnesses, so that the execution of the will consists of a single transaction.  

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8. In what way can a will be revoked?

 

  • You are free at any time to revoke a will that you have made. The usual way is by stating in a later will that you revoke all previous wills – a standard clause in the average will. However, it is also possible to revoke a will by destroying it – simply tearing up a will with the intention of revoking it is sufficient.
  • If a will is destroyed, however, it does not follow that it has been revoked. If the will was destroyed in error – for example, if you thought it was an old insurance policy rather than your will – than the will remains valid. Of course, it may be difficult to prove a will if it has been destroyed, but this is not impossible. For example, a signed duplicate may exist.
  • Moreover, if it is shown that the will was destroyed because you thought it had already been revoked by a later will, but it subsequently transpired that the later will was invalid and therefore did not revoke the first, the act of destruction is not regarded as an act made with the intention of revoking the will and is therefore not effective.   

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9. What if someone dies without leaving a will?

 

  • A person who dies without leaving a will said to die intestate – and the estate will be distributed in accordance with the rules of intestate succession. The rules also apply to the sharing out of the deceased’s property not specifically disposed of in his or her will. Moreover, if heirs who are mentioned in a will have died and there is no mention of substitution heirs in that will, the rules of intestate succession will determine how the deceased estate should be distributed.
  • If the estate is intestate the Master will appoint an executor – usually the surviving spouse. An executor appointed by the Master is called the executor dative, whereas one appointed in a will is an executor testamentary .If the value of the estate does not exceed R125 000, the Master of the High Court may dispense with the appointment of the executor and give directions as to the manner in which such an estate is liquidated and distributed.
  • If there are no surviving relatives and no blood relatives, the estate is paid into the Guardians Fund of the Master of the High Court and, if not claimed within 30 years, will be forfeited to the state.
  • When a partner in a same-sex permanent partnership dies, the surviving one, even though they are not legally married, inherits the deceased’s intestate estate.

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10. Intestacy: Who gets what?

 

  • Surviving spouse and no descendants

If the person who dies leaves a spouse but no children, the spouse will inherit the entire estate.

  • Surviving spouse and descendants

The surviving spouse inherits a child’s share or up to R125 000, whichever is the grater, while the descendants inherit the remainder. A child’s share is calculated by dividing the monetary value of the state (at the date of death) by the number of children of the deceased who have either survived him or have died before him, leaving descendants surviving him, plus one.

  • Dependants but no surviving spouse

If the deceased leaves no descendants, his/her estate will be divided equally among them. In terms of the Intestate Succession Act, 1987, an adopted child is deemed to be a descendant of its adoptive parents. Similarly its adoptive parents, not its natural parents, are deemed to be its ancestors. The general principle is that a deceased person’s estate will be divided equally among the various children. If one or more of the children have died before the deceased, each deceased child’s children can take his or her place and the deceased child’s share will be divided equally among the deceased child’s children. Them procedure by which children can take the place of the deceased child can go through any number of generations.

  • No spouse or dependants but parents alive

If both parents are alive, each will get a half share of the intestate estate. If one parent is alive, he or she gets half, with the other half going to the descendants of the deceased parent. If there is one surviving parent and no descendants of the deceased parent, the surviving parent inherits the whole of the estate.

  • No spouse, descendant or parent, but a brother or sister (or his or her descendants)

In this case, half of the estate goes to the descendants of the deceased’s mother (per stirpes) and the other half to the descendants (per stirpes) of the father. Per stirpes is where a deceased’s child’s heirs can inherit in his or her place. This can continue through any number of future generations. Full brothers or sisters (or their descendants) therefore inherit through both parents while half-brothers or half-sisters (or their descendants) inherit through the parent common to them and the deceased (known in law as full hand and half hand). If descendants of only one parent are alive, they will inherit the whole estate.

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11. Who can be appointed as executor to deal with the administration of an estate and what is the role of the executor?

 

It is advisable that your attorney should be appointed as he/she will:

  • Be familiar with the directions contained in your will
  • Know where your assets are
  • Have general information of your family affairs
  • Be in a position to wind up your estate and carry out transfer registrations of any fixed property expeditiously, and
  • Has specialized legal knowledge of the administration process

However a family member can also be appointed as executor together with your attorney.

The Executors is required to:

  • Collect the deceased’s assets
  • Settle his/her liabilities
  • Distribute the balance of the estate to the heirs in terms of the will of the deceased, or in accordance with the provisions of the Intestate Succession Act where the deceased died without a will.    

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12. What should a person know to create greater confidence in the process of estate administration?

 

  • The Administration of Estates Act does, in certain exceptional circumstances allow a surviving spouse to take over the property of the deceased or a portion of the property, subject to adequate security being furnished by the surviving spouse to secure any minor’s portion. The heirs in the state are also entitled to enter into a Redistribution agreement which will have to be submitted to the Master fro approval and acceptance. Specialized advice by an attorney is usually required in such circumstances.
  • The executor, may, before the account has lain open for inspection, and with the consent of the Master, release an amount of money and any property out of the estate as in the Executor’s opinion is sufficient to provide for the subsistence of the deceased’s family or household. 
  • Furthermore, where the estate is solvent and there are sufficient funds, the Executors can make advances to heirs or legatees an account of their inheritances or legacies. This particularly the case where the beneficiary is the surviving spouse or where there is likely to be delay in lodging the account. 

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13. What takes place in relation to the estate account?

 

  • As soon as possible after the reporting of the estate, the Executor determines the value of the assets and liabilities in the estate at the date of death.
  • After the Letters of Executorship have been issued, the executor must publish a notice in the Government Gazette and in one or more newspapers circulating in the district in which the deceased was ordinarily resident, calling on all persons having claims against the estate to lodge the claims with the Executor within a specified period, which is usually 30 days from the date of the latest publication.
  • After that, but within a period of 6 months after Letters of Executorship have been granted, or such further period as the Master may allow, the Executor is obliged to submit to the Master an account of the liquidation and distribution of the estate.
  • The Master will examine the account and, if this in order, authorize the Executor to advertise the account to lie for inspection. The executor’s account must lie open at the Office of the Master for inspection – and if the deceased was ordinarily resident in any other district, a duplicate account must lie open at the office of the Magistrate – for not less than 21 days, for inspection by any person interested in that estate. The Executor must publish a notice in the Government Gazette and in one or more newspapers circulating in the district in which the deceased was ordinarily resident stating the period during which and the place at which the account will lie for inspection.
  • Once the inspection has passed, the Master will notify the Executor that the account has lain for inspection free from objections. The executor can then pay the creditors and distribute the estate among the heirs in accordance with the account. If the executor is in possession of funds of R1000 or more, he or she has to open a estate banking account. However this requirement has been dispensed with where a practicing attorney uses his/her trust account to administer the deceased estate’s funds.    

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14. What about Value Added Tax, Capital Gains Tax and Income Tax?

 

  • The Executor will ascertain whether the estate is liable for value added tax (vat) and/or income tax.
  • If the deceased was registered as a vendor the executor may have to register the estate for VAT purposes. There will be VAT implications. The Executor may have to pay output to the South African Revenue Service on all assets in the deceased’s enterprise. It may be possible for the Executor to sell the enterprise as a going concern to another VAT vendor and have such transaction ‘zero rated’.
  • The Income Tax Act provides that when a person dies, he/she is deemed to have disposed of all his/her assets to the deceased estate for an amount received or accrued to the market value of those assets and the deceased estate is deemed to have acquired the assets for this market value.
  • This is the general principle, but there are exceptions. For example, the assets accruing to the surviving spouse upon the death of the first dying spouse are not deemed to have been disposed of on the death of the deceased.
  • In may instances income tax is payable and this could have an influence on the amount of inheritance available to heirs.  

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15. when is estate duty payable and do heirs have a choice to repudiate or renounce a bequest or inheritance?

 

  • Estate duty is currently charged on the dutiable amount of the estate at a flat rate of 20% The dutiable amount is calculated by deducting a R3,5m primary abatement from the ‘net value of the estate’ The value of all property in the deceased’s estate which accrues to the surviving spouse, either in terms of the deceased’s will or by intestate succession, can be deducted to the extent that it has been included in property.
  • Any beneficiary is entitled to repudiate or renounce a bequest or inheritance. Election arises when spouses have massed their estates and the surviving spouse must elect to take his or her share and forego the benefits of the joint will, or allow his/her share to be disposed of and enjoy the benefits.
  • Where a beneficiary renounces an inheritance, that inheritance will devolve either in accordance with the deceased’s will or in terms of the law of intestate succession.   

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16. What are the factors that delay the winding up of an estate and how can the process be speeded up ?

The average time to wind up an estate is 9 months but some take up to five or even 10 years.

Delays can be caused by:

  • When there is no valid will
  • Workloads in Local Government resulting in delays in the issuance of clearance certificated
  • Outstanding tax returns · When title deeds have been lost or misplaced and need to be replaced.
  • When shares must be sold
  • Shortage of cash and the resultant need to sell assets
  • Unnatural deaths, meaning descendants and the estate must await for post mortems from the police.
  • Re-division of assets · Differences between heirs
  • The transfer of firearms
  • Obtaining statements and valuations for share portfolios for estate duty purposes
  • Court cases
  • Maintenance claims
  • Divorce orders which have not been adhered to
  • The tracing of heirs
  • Complicated business constructions for which no proper estate planning was done
  • Beneficiaries who have emigrated and no longer have South African bank accounts
  • The illegal occupation of estate property and resultant eviction orders

Speeding up the process:

  • Work closely with the executor
  • Do proper estate planning
  • Provide complete and correct information
  • Take out insurance to ensure there are no shortages
  • Ensure the last will and testament is valid and executable
  • Save all important documents, for example, insurance policies, investment documents, property title deeds and bank statements in a file, and
  • Keep your will safe in a safe place. 

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17. What are the factors that delay the winding up of an estate and how can the process be speeded up?

 

The average time to wind up an estate is 9 months but some take up to five or even 10 years.

Delays can be caused by:

  • When there is no valid will
  • Workloads in Local Government resulting in delays in the issuance of clearance certificated
  • Outstanding tax returns · When title deeds have been lost or misplaced and need to be replaced.
  • When shares must be sold
  • Shortage of cash and the resultant need to sell assets
  • Unnatural deaths, meaning descendants and the estate must await for post mortems from the police.
  • Re-division of assets · Differences between heirs
  • The transfer of firearms
  • Obtaining statements and valuations for share portfolios for estate duty purposes
  • Court cases
  • Maintenance claims
  • Divorce orders which have not been adhered to
  • The tracing of heirs
  • Complicated business constructions for which no proper estate planning was done
  • Beneficiaries who have emigrated and no longer have South African bank accounts
  • The illegal occupation of estate property and resultant eviction orders

Speeding up the process:

  • Work closely with the executor
  • Do proper estate planning
  • Provide complete and correct information
  • Take out insurance to ensure there are no shortages
  • Ensure the last will and testament is valid and executable
  • Save all important documents, for example, insurance policies, investment documents, property title deeds and bank statements in a file, and
  • Keep your will safe in a safe place. 

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18. How does the law define a dependant i.t.o. the Pension Funds Act?

 

The Pension Funds Act distinguishes between three types of dependants for the purposes of distributing a fund member's death benefit, Pension Funds Adjudicator Muvhango Lukhaimane says.

In terms of section 37C, the three types of dependants are:

  • Legal Dependants, to whom the deceased owed a legal duty of financial support.
  • De facto dependants, to whom the deceased owed no legal duty of financial support but nevertheless depended on him or her financially; and
  • Future dependants who the deceased did not financially maintain at the time of his or her death but would have done so had he or she been alive. Future dependants include the deceased elderly and indigent parents.

A Potential dependant must fall into one of these categories to be entitled to a death benefit.

Regarding Death Benefits and Estates:

The payment of death benefits by a retirement fund is regulated by section 37C of the Pension Funds Act. A death benefit does not normally form part of the estate of the deceased, but this section gives the fund's board of trustees the discretion, to be exercised fairly and reasonably, insofar as the distribution of death benefits is concerned.

First, the trustees must identify the dependants as defined in the Act. If there are dependants and/or some nominees, the benefits must be distributed equitably to them.

If there are no dependants, the trustees must check of the estate is solvent.

If it is solvent, the nominees can be paid.If it is not solvent, the trustees must pay what is required to the estate and then pay any nominee.

If there are no beneficiaries and no nominees, and if there is no estate, the benefits must be paid to the Guardian's Fund.

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19. Can you please provide a brief overview Of Islamic Inheritance From A South African Law Perspective?

 

The following information was provided by attorney Abdul Latif Buckus. You can read more here.

Succession, colloquially referred to as inheriting, is the process whereby the heirs of a deceased person succeed to the assets which the deceased left behind at the time of death. Assets in this instance refer to the residue after all liabilities and debts of the deceased have been settled.

INTESTATE SUCCESSION

The provisions of the South African, Intestate Succession Act, are applied where the deceased entirely or partially died intestate. This means that the deceased did not attest to a valid last will and testament before his or her demise.

Intestate succession will determine the heirs to a deceased estate in the following circumstances:

– When the deceased failed to attest to a valid last will and testament, or

– Where it is impossible to carry out the wishes of the deceased because the beneficiaries, for example, predecease the testator, or do not wish to inherit.

A person can die completely intestate or only partly intestate. The latter would be where, for example, a testator specially bequeaths one portion of his estate in a valid last will and testament, but omits to deal with the rest of his or her assets. In this instance the portion that has been bequeathed by will, shall devolve testate as set out therein, while the rest of the estate will devolve according to the rules of intestate succession.

Where spouses were married in community of property the estate will first be divided in half. The surviving spouse will receive half by virtue of the marriage in community of property and the other half will devolve in terms of the Intestate Succession Act.

According to prevailing South African case law, persons married in terms of Muslim rites should be regarded as spouses for purposes of intestate succession and are entitled to inherit from their deceased partner in terms of the Intestate Succession Act, despite the fact that their “marriage” is not recognised as a valid marriage in terms of our current law.

In Daniels v Campbell NO & Others 2004 (5) SA 331 (CC) the court recognised the wife to a monogamous Muslim marriage as a “spouse” for purposes of intestate succession and the Maintenance of Surviving Spouse Act. In Hassam v Jacobs N.O. & others (2008) JOL 22098 (C) a case dealing with polygamous Muslim marriages the court found no justification for excluding the widows of polygamous Muslim marriages from the provisions of the Maintenance of the Surviving Spouses Act and the Intestate Succession Act. The court held that the continued exclusion of the widows of polygamous Muslim marriages from the benefits of the Acts would be unfairly discriminatory against them and be in conflict with the provisions of section 9 of the Constitution. Marriages in terms of Muslim rites are generally regarded as being out of community of property.

If a Muslim passes on without having left a valid will and testament, the provisions of the Intestate Succession Act would find application and not Islamic Law. Neither the surviving spouse, descendants nor ascendants, can compel the implementation of succession in terms of Islamic Law.

TESTATE SUCCESSION: 

South African law allows for the freedom of testation, which means that where a deceased had attested to a valid last will and testament, setting out how his or her estate must devolve the stipulations therein are given effect to after his or her demise. A person can also nominate the person or persons, known as executors, who should administer the estate after their demise.

Where the deceased was married, in community of property, he or she can only dispose of his or her half share of the joint estate, in a will.

APPLICATION OF ISLAMIC LAWS OF SUCCESSION:

There is no intestate succession in Islamic law, every Muslim dies testate, as the Holy Quran sets out how the deceased’s estate should be distributed and administered. Since South African law embraces freedom of testation, it is imperative that every major Muslim, execute a valid will in accordance with Islamic law. It is also vital that the will is executed in compliance with the requirements of South African Law, and updated or amended with change in circumstance.

POINTS TO NOTE:

If the deceased was married in community of property, the joint estate is frozen upon the demise of one of the spouses. This situation often creates hardship for the surviving spouse, especially where the bank accounts were all in the name of the joint estate or in the name of the deceased, as no person may withdraw funds from the deceased’s bank accounts or deal with any of the estate assets until appointment by the Master of the High Court.

Reporting and finalising a deceased estate in South Africa can be a lengthy and complex process, during which time most if not all of the assets will be under supervision and control of the master’s representative.

South African law also dictates fees and charges that are levied to wind up a deceased estate, which should be catered for, in order to avoid delay and financial difficulty to those left behind.

We are able to not only finalise for you, a will that complies with the requirements of both Islamic, and South African law, but also advise on estate planning and financial security for the period that a deceased estate is being administered.

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