Estate planning is an essential step in safeguarding your assets and ensuring your wishes are followed after your death. Central to this is a valid will: a document that gives clear instructions on how your estate should be distributed. If you pass away without one, your estate is distributed according to the laws of intestate succession, a strict legal formula that may not reflect your personal wishes.
What is intestate succession?
Intestate succession is the statutory system that governs how an estate is distributed when someone dies without a will. Under the Intestate Succession Act 81 of 1987, specific rules determine who inherits, based on their relationship to the deceased. The process prioritises immediate family and blood relatives, but it is rigid: it cannot accommodate unique family circumstances, non-blood relationships or any other wishes the deceased may have had.
How is an estate distributed without a will?
In South Africa, an intestate estate follows a set order of inheritance that prioritises spouses and descendants:
- Surviving spouse only. If the deceased leaves a spouse and no children, the spouse inherits the entire estate.
- Surviving children only. If there is no surviving spouse, the children inherit in equal shares. This includes biological and adopted children; stepchildren inherit only if they were legally adopted.
- Spouse and children. The spouse receives a child’s share or R250 000, whichever is greater, and the remainder is divided equally among the children. A child’s share is calculated by dividing the estate by the number of children plus the spouse.
- Other blood relatives. With no spouse or children, the estate passes to the closest blood relatives, such as parents or siblings, and may be divided equally among more distant relatives.
- No surviving relatives. The estate is held in the Guardian’s Fund for up to 30 years, during which unknown relatives may come forward. If no heirs are identified, the estate reverts to the state.
Why a will is crucial
A will offers flexibility and legal certainty. It lets you choose your heirs, decide who receives particular belongings, appoint guardians for minor children and select an executor to oversee the estate, which helps to prevent misunderstandings and conflict among family members.
A will can also include a fideicommissum, a condition under which a first beneficiary receives property on the basis that it will pass to a subsequent heir after a period of time or when certain conditions are met. For example, a parent may leave a house to a child on condition that it is eventually inherited by a grandchild, preserving family assets across generations.
Through a will you can create a trust to manage assets for minor children until they reach a suitable age, with a trustee you have chosen. Without such a provision, assets inherited by minors are usually managed by the Guardian’s Fund or a court-appointed guardian, which can limit access to funds and delay distributions.
You may also attach reasonable, lawful conditions to an inheritance, for instance that a beneficiary receives it only on completing a degree or reaching a certain age.
With a will in place, you can have peace of mind that your assets will be managed as you intended.
Requirements for a valid will
To be legally valid, a will must meet the formal requirements of the Wills Act 7 of 1953:
- The testator must be 16 years or older and mentally capable of understanding the will’s implications.
- The will must be in writing and signed by the testator and two competent witnesses, all present at the same time.
- Where the testator signs with a mark rather than a signature, a Commissioner of Oaths must be present to confirm the testator’s identity and certify the will.
Failure to meet these requirements can result in the will being declared invalid.
Challenging the validity of a will
Even when a will exists, its validity can be disputed. Common grounds include non-compliance with the Wills Act, fraud, forgery and undue influence on the testator. Courts generally try to uphold the testator’s wishes, but may rule against a will where it is proven, on a balance of probabilities, that it was not made voluntarily or does not reflect the deceased’s wishes. The party disputing the will carries the burden of proof.
In Kunz v Swart and Others 1924 AD 618, the court examined whether a will genuinely represented the testator’s wishes in the context of alleged forgery. In Pillay and Others v Nagan and Others 2001 (1) SA 410 (D), the applicants successfully contested a will on the basis that the signature had been forged. Both cases show the court’s role in protecting the integrity of wills.
Conclusion
Creating a valid will is a powerful step toward ensuring your estate is distributed according to your wishes. Intestate succession provides a structured approach, but it is often rigid and may not reflect your family’s circumstances. Given the complexity of estate planning and the possibility of disputes, it is wise to seek professional assistance when drafting your will.