A will should be considered to prevent squabbles among family members

November 6th, 2020

 By Kgomotso Ramotsho

The Women’s Legal Centre (the Centre), in partnership with the Law Society of South Africa (LSSA), South African Women in Dialogue, the Black Lawyers Association, the National Association of Democratic Lawyers (NADEL), Legal Aid South Africa (Legal Aid SA), the South African Women Lawyers Association (SAWLA), the Department of Justice and Constitutional Development, and Sister In Law embarked on a broad advocacy, awareness and information campaign during September and October leading up to National Wills Week. De Rebus covered the first webinar on 29 September. Legal practitioner and member of NADEL, Pumza Malefane, said that in the Black Administration Act 38 of 1927 customary marriages were not treated as marriages but were regarded as unions. She added that in the past the appeals by native chiefs were headed by native commissioners, from native commissioners to the Native Appeal Court. She pointed out that the Native High Courts sat at such times and places the minister determined in the Government Gazette.

Ms Malefane said that s 22 of the Black Administration Act dealt with succession and on death the administration of the immovable property was dissolved according to native law and customs. She pointed out that under the Black Administration Act, males owned property and even if females were married, they were not allowed to own property. However, widows were treated differently from married women, as they were allowed to head families. She pointed out that in South Africa (SA) the Black Administration Act was amended by s 1 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, but before the Matrimonial Property Law Act, the Black Administration Act stated that if a deceased black person who was married in a civil union died intestate, their estate would be dissolved as if they were European. The Matrimonial Property Amendment Act allowed a black person in a customary union to enter a dual system of marriage, by concluding a civil marriage with one another. Ms Malefane added that the Transkei Marriage Act 21 of 1978 allowed a man to enter into a customary marriage with another woman, as long as the marriage was out of community of property.

The Centre’s, Charlene May said that the legislative framework is failing women daily. She added that the Centre looks at how women are discriminated against and how they are placed in a holistic category of persons. She said that very little is being done to look at women as individuals. She pointed out that intersectionality is important as women experience discrimination differently, based on where they are positioned in society. Ms May said there is talk of an individual woman, but it may be someone who already has experienced discrimination based on their race, class, birth, religion and education or whether the woman is from an urban or a rural area.

Ms May pointed out that when a woman comes into contact with the law, her experience is very different. The experience of discrimination is often very different, and a woman’s decision is influenced on where she is situated, by religious beliefs, culture and customs, as well as the influence from those around her, who she is meant to be making decisions with, will respond to her request. She added that these factors play a critical role when examining how a woman engages with her own decision-making power when it comes to financial management, acquiring property or when it comes to dealing with marital property or making decisions about marital property in the marriage she enters into. She said that the law does not take into consideration the challenges women face.

Legal practitioner and member of SAWLA, Keneilwe Mabapa, said that South African law does not recognise cohabitation, however, she added that there was an effort around 2008 when the draft Domestic Partnerships Bill, 2008 came into being, but for some reason that Bill was never passed into an Act and, as a result, cohabitation is not recognised in South African law. She pointed out, however, that one cannot say cohabitation is not 100% recognised, as there is some protection that is afforded to cohabiters in the event that their partners die or if they separate. She said one should look at the Pension Funds Act 24 of 1956, which makes provision for life partners and cohabiters being allowed to claim from their partners’ pension fund.

Ms Mabapa said a cohabiter will not be able to claim from the estate of their late partner but can claim from the pension fund, as the pension fund is separate from the estate. She added that tax law recognises cohabiters in a sense that when donations are made between cohabiters, tax does not apply. She pointed out that another Act that provides for cohabiters is the Compensation for Occupational Injuries and Diseases Act 130 of 1993, which provides that, if a partner dies while at work, the other partner is able to claim death benefits, provided the cohabitation partner does not already have a spouse or is married. Executive Committee and House of Constituents member of the LSSA, Ugeshnee Naicker, said that there is a need for the LSSA and various stakeholders in the legal profession to attempt to create a legislative framework, going forward, that incorporates the various piecemeal Acts to deal with succession and estates. She added that Wills Week, an initiative by the LSSA, gives people in the country an opportunity to draft a will, for free, from legal practitioners who will be participating in the initiative. Ms Naicker pointed out that a will is the most important document that one will leave behind in one’s lifetime. She said it is a document where one can set out their last wishes and she encouraged attendees to seek legal advice, because of the technical aspects of drafting a will.

Ms Naicker shared some of the basic requirements of drafting a will –

  • a testator must be over the age of 15;
  • a testator must have a mental understanding to know what they are doing;
  • a person cannot be forced into making a will or give someone benefit under their will;
  • a signature and name is a very important aspect of the will because if your signature cannot be identified, the will can be challenged. When a person cannot sign their own will, and another person signs on their behalf, there will have to be two competent witnesses and the will must be signed in the presence of a Commissioner of Oaths;
  • a beneficiary of a will should not sign as a witness, and an executor may not sign as a witness; and
  • a will may be amended at any time before death.

Ms Naicker pointed out that a will can be approached differently as people have different circumstances in life. She advised that one should think about and draft one’s will before approaching a legal practitioner. She added that one should also think about the risk that might come with deciding what one puts in the will. Ms Naicker said that even if one has the freedom of testation, they should be as considerate as possible when drafting a will, to avoid unnecessary fights among beneficiaries.

Legal practitioner and a member of Sister in Law (a platform dedicated to empowering women through legal education), Kholofelo Sekele, said that it is important to have a will even in your days of youth. She pointed out when one does not have a will, legislation will determine where the asset/s will go. She added that one of the benefits of having a will is that it can limit family squabbles, and one can clearly state in the will, for example, who and how the children of the deceased can be taken care of.

Assistant Master at the Master’s Office, Patrys Venter, said that the Master of the High Court has 15 offices country wide and there are also 402 service points at magistrates’ courts and 290 of them are electronically linked with the Master’s Office. The Master of the High Court does not only work on deceased estates, but also oversees, among others –

  • the guardian’s funds;
  • the trust register;
  • the supervising and overseeing of administration of curatorship; and
  • the appoint executors, trustees and so on.

Ms Venter added that with regard to wills, once a will has been made one can revoke, withdraw, cancel, or amended it before one dies. If one dies within three months after their marriage is dissolved by divorce or annulment and that person executed a new will before the date of dissolution that will, shall be implemented in the same manner if their previous spouse had died before the date of the dissolution. Unless it appears from the will that the estate benefits the previous spouse notwithstanding the dissolution of the marriage.

Ms Venter said if one passes away more than three months after the divorce and that person did not change their will, their estate will be dissolved according to that will. The ex-spouse will inherit the estate. She added that a person over the age of 14 is competent to act as a witness on a will. However, a witness may not be a beneficiary of the will. She advised that one should not ask any person they want to list as a beneficiary on the will to be a witness or write the will as they will be disqualified from inheriting anything. If you write a will in your own handwriting you cannot inherit from that will and the person who signs the will, will also be disqualified.

Ms Venter pointed out that if one does not leave a will, then intestate succession comes into play. She said marriage in community of property will mean half of the estate goes to a surviving spouse and the other half will dissolve in terms of intestate succession. Ms Venter also added that when drafting a will, one can choose their own executor, it may not be the legal practitioner or trust company that drafted the will, as there is freedom of testation.

Legal practitioner at Legal Aid SA, Rene Carstens, said Legal Aid SA is cooperating with the Master’s Office, in regard to estates where minors are the only beneficiaries to the estate. She added that Legal Aid SA mostly deals with estates in terms of s 18(3) of Administration of Estates Act 66 of 1969, where the value of the estate is less than R 250 000, but in cases where there is immovable property up to a value of R 500 000, Legal Aid SA will be appointed as an executor in that estate. She pointed out that the guardian’s fund has been established to manage the money of minors or minor beneficiaries of estates. She said that the money will be paid to the guardians’ fund until the children are 18 years old, or the Master will direct that despite a will the money must be paid to the guardians’ fund.

Ms Carstens added that an account will be opened in the beneficiary’s name and the guardian’s fund can make provisions of payments of maintenance for minor beneficiaries. She pointed out that some people will indicate in a will that they do not want the money to go to the guardians’ fund but can also direct that the money in the guardian’s fund must not be paid out until the beneficiary is an 18-year-old. She added that when money is paid to a guardian fund, it does not mean it cannot be accessed by a guardian of the child.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.