Where there’s a Will there’s a way; there’s more than one way though

A South African testator has almost unlimited freedom of testation and may stipulate in his or her will whatever he or she wishes. As a result, the contents of wills may vary greatly.

The manner in which assets are distributed after death depends on whether a will or other valid documents containing testamentary provisions, such as an antenuptial contract, exists.

But freedom of testation is not absolute and is subject to limitations imposed by various pieces of legislation.

When a person dies without a will or their will, or part of it, is declared invalid for whatever reason, that person’s estate will be distributed according to the principles of common law. In the event of intestacy, the assets are distributed in order of preference among the heirs, as stipulated by the Intestate Succession Act.

Not too long ago the act existed side-by-side with a statutorily-regulated customary-law regime of intestate succession, applied on a racial basis, but this was brought to an end by the Constitutional Court, making the act applicable to all.

So if a person is quite happy with the pecking order of intestate succession, why bother to make a will? There are many drawbacks to dying intestate and some are listed below.

A will can avoid many problems and can be the instrument to wind up an estate as speedily as possible.

The children of a very close friend of mine, who died six years ago without a will, are still waiting for the national guardian fund to release their inheritance.

So there is no doubt why it is important. It states who inherits your property, who is the guardian of your minor children; and who is in charge of your estate administration. In other words: not the government.

Unfortunately, the red tape does not end there. Apart from a default inheritance regime, South Africa is one of the few countries that have a default matrimonial system of “in community of property”.

It is an approach which applied to “white” marriages through the common law and was only extended to include “black” marriages in December 1988. Prior to this extension, “black” marriages concluded in terms of the civil laws of the country were automatically out of community of property.

According to the Recognition of Customary Marriages, all customary marriages are entered into in community of property and of profit and loss between the spouses, unless the parties have an antenuptial contract.

The act came into operation on 15 November 2000. As a result, polygynous, customary marriages entered into before the commencement of the act was regarded as being out of community of property, not subject to the accrual system.

The 2016 High Court monogamous, customary marriages; polygynous, customary marriages concluded before the commencement of the Act; and spouses must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and each spouse must have similar rights in respect of the family home.

Parliament has until 30 November 2019 to rectify the act based on the Constitutional Court’s ruling back in 2000, failing which, the court’s interim order will become final.

Cliffe Decker Hofmeyr says that for the sake of clarity, it is worth noting that parties that conclude polygynous, customary marriages after the commencement of the act are required to make an application to a court for approval of a contract between all spouses which will regulate their future matrimonial property regimes.

Failure to do so does not invalidate the subsequent polygynous, customary marriage, but the default will be that the latter is out of community of property.