Any person of 16 years and over is free to make a will in order to determine how his or her estate should devolve or be distributed upon their death. Should a person die without a will, their estate will devolve in terms of the rules of intestate succession and, contrary to popular belief, the estate will not be forfeited to the State or government.
The law relating to intestate succession is governed by national legislation, particularly, the Intestate Succession Act 81 of 1987.
The rules of intestate succession are simple and easy to understand. Briefly, what will happen is that your estate will be said to devolve upon your next of kin, which is your next direct family member. Intestate succession is based primarily on blood relationships. Illegitimacy does not affect the capacity of a blood relation to inherit at all and therefore, by way of example, if you were not married at the time of having a child (descendant) or were born to unmarried parents yourself, you or your child would still be entitled to receive the same portion as if the parents were married.
Similarly, an adopted child is considered to be a descendant of his adoptive parents as if they were blood relations.
An important development, which has an effect on one’s capacity to inherit intestate, was made in the recent case in the Constitutional Court of South Africa, namely Daniels v Campbell NO and Others 2004. This landmark judgment has changed the face of intestate law and the word “spouse”, as it is used in the legislation relating to intestate succession, now includes a party to a monogamous Muslim marriage. Previously there was a gross disparity in our law, and women and men married in accordance with Islamic law were not able to inherit from their spouses at all, despite the duration of the marriage or any other factor. In line with our country’s constitutional reform and the acceptance and enforcement of the Bill of Rights, this is now remedied.
Taking all this into account, you may be unsure of how exactly the process of intestate succession would practically unfold in circumstances that are not clear cut. This is how a person’s estate would devolve intestate:
• If the deceased is survived by a spouse or spouses and has no living descendants, and thespouse inherits the estate.
• If the deceased was a husband in a polygamous marriage, the surviving spouses will inherit in equal shares.
• If the deceased is survived by a descendant, but not by a spouse, the descendant will inherit the estate.
• Where there is a living spouse or spouses and descendant/s, each spouse will inherit R125 000 or a child’s share, whichever is greater, the descendants will receive the balance of the estate.
• In this regard it is important to note that if a descendant is deceased and has their own descendants, that descendant’s portion will devolve upon their surviving spouse and descendants, if any.
• If the deceased leaves no spouse or descendants, but both the deceased parents are alive, the parents shall inherit the estate in equal shares.
• If the deceased has no surviving spouse nor dependants but has only one surviving parent, the parent inherits half the estate and the descendants of the deceased parent will then inherit the other half. If there are no such descendants, the surviving parent shall inherit the entire estate.
• If the event that the deceased is not survived by a spouse, descendant or parent, but is survived by descendants of the deceased’s mother or father, who are related to the deceased through the parents, for instance grandparents, then one half of the estate will be divided equally among the mother’s descendants and one half of the estate will be divided equally among the father’s descendants.
• If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, any other blood relations of the deceased, who are related to him “nearest in degree”, will inherit the estate in equal shares. In this regard an example would be one’s closest cousin or nephew or niece.
• Where there are no relatives, and the assets have not been claimed by a legitimate heir after 30 years, the estate will then be forfeited to the State.
In terms of the legislation mentioned, upon one’s death the Master of the High Court may appoint an executor, since there is no will and therefore no-one would have been nominated in a will as the executor. The executor administrates the deceased estate and is responsible for drawing up the “liquidation and distribution” account of the estate. The executor's duty is also to locate the will if there is one. If a will cannot be traced, even though relatives may be positive that one exists, the estate must be administered as if no will had been drawn up and according to the laws of intestate succession.
Similarly, if one’s will is found to be invalid, the estate is to be administered in terms of intestate succession legislation, as mentioned above.
The requirements for concluding a valid will are set out in a further piece of legislation, the Wills Act 7 of 1953. The requirements for a will to be valid are as follows:
• All wills must be in writing. They can be written by hand, typed or printed.
• The signature of the person making the will, who is referred to as the testator or testatrix, must appear at the end of the will.
• The signature of the testator or testatrix must be made in the presence of two or more competent witnesses. In this regard a competent witness is someone who is older than 14 years of age and who is of sound mind.
• The witnesses must sign the will in the presence of the testator or testatrix and of each other.
• If a will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator or testatrix. Although the testator or testatrix is required to sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.
As you can see, it is easy and important to execute a will that is valid and that will leave your loved ones with peace of mind that your wishes will be executed as you would have wanted.
If you require assistance in concluding a will, your bank or an attorney would be equipped and able to assist you to ensure that your interests and those of your family and loved ones are protected.
