Legal Articles

People are encouraged to execute valid Wills in their lifetime, to make the administration of deceased estates much easier. A will provides for directions on how one prefers their late estate to be administered, thereby preventing disputes amongst the beneficiaries. Most of us have seen contests before the Courts to challenge the validity of Wills, to seek the removal of an Executor or to oppose the competency of an heir to inherit. It is important to execute valid Wills to avoid such instances.

The most prominent benefit of executing a valid Will, is that the late estate will devolve as per the testator’s wishes i.e. it gives the testator an opportunity to choose the beneficiaries, nominate an Executor or give conditions upon which such inheritance will accrue. It ought to be remembered that intestate succession (where one dies without a valid Will) is not awake to the dynamics surrounding the personal relationship between the deceased and an heir. For example, at the time when the deceased passes on without a valid Will, maybe his/her personal relationship with one of the heirs was not in good stead. Executing a valid Will, would have presented an opportunity to disinherit such heir (to the extent that it does not go against public policy).

In the case of Spies v Smith 1957 (1) SA 539 (A) the deceased executed a second Will, revoking the first one he had made appointing the two daughters of his stepmother as heirs. Upon his death the stepmother then challenged the validity of the second Will on the ground that the testator had been unduly influenced to change the beneficiaries, from her daughters to the children of his uncle with whom he stayed with before his death. The Court ruled against this argument, and on appeal the challenge was dismissed. The case shows how central the aspect of “wishes of the testator” plays in testate succession. In Katz and Another v Katz and Others 2004 (4) All SA 545 (C) it was held that the mere fact that the testator had made a new Will while dependent on his second wife when he suffered a stroke was not sufficient proof of undue influence unless ample evidence to the contrary is proven.

Turning to intestate succession where one passes away without a valid Will, the late estate will devolve intestate as per the Intestate Succession Act 81 of 1987. We will give a few scenarios to examine how the late estate will devolve.

A and B are married in community of property, and have 4 children. A passes away without a Will, leaving behind his wife B and their 4 children. How will the residue of A’s deceased estate valued at R800 000.00 devolve?

B will inherit her half share of the joint estate since they were married in community of property, plus a child’s share or R250 000 (whichever is greater) from the remainder of the late estate. Child’s share is calculated by adding the number of descendants plus the number of surviving spouses.

Let us calculate B’s share:

(50% of R800 000) + child’s share or R250 000 whichever is greater

R400 000 + (R400 000 divided by 5)

R400 000 + [ R80 000 or R250 000 whichever is greater]

R400 000 + R250 000

B’s share will be R650 000. The 4 children will equally divide R150 000 amongst themselves.

A and B are married under customary law without having executed an antenuptial contract, they have 2 children. B passes away without a Will, leaving behind her husband A and their 2 children. How will the residue of B’s late estate valued at R1 800 000.00 devolve?

Customary marriages are by default in community of property, unless an antenuptial contract is executed.

Let us calculate A’s share:

(50% of R1 800 000) plus a child’s share or R250 000 whichever is greater

R900 000 plus [R900 000 divided by 3]

R900 000 plus [R300 000 or R250 000 whichever is greater]

R900 000 plus R300 00

‘A’ will inherit R1 200 000, and the 2 children will equally share the remaining R600 000.

Since the cases of Hassam v Jacobs NO 2009 (5) SA 572 (CC) and Bhe and Others v Magistrate, Khayelitsha, and Others (Commission For Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) when calculating a child’s share, the number of spouses is taken as is. In simpler terms, one has to add the number of children and the number of surviving spouses to calculate the child’s share (not merely plus one).  

The administration of a deceased estate is not as easy as it sounds, the competing interests of creditors and heirs will need to be dealt with according to the law, while handling possible disputes amongst the family members. It is advisable sometimes to nominate a legal practitioner as Executor, as they are privy to the processes required.

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