- Wills and Family Law in South Africa
With National Wills Week running in September, it is a timely reminder that a Will is not only about deciding who inherits your assets. Your Will can also intersect directly with divorce, maintenance obligations, your matrimonial property regime and the financial protection of your children or spouse, as well as your business. The Law Society of South Africa’s National Wills Week information highlights the importance of having a valid Will so that your assets can be distributed according to your wishes.
A properly drafted Will should therefore work alongside your family-law and commercial considerations. If it does not, your beneficiaries may face delays, disputes or financial consequences you never intended.
How Does Divorce Affect Your Will?
Divorce is one of the clearest reasons to review your Will.
Under Section 2B of the Wills Act, should you die within three months after a divorce or annulment and your Will was made before the marriage ended, your former spouse will not inherit But if you do not change your will after three months and your ex spouse is still to be found in your will, he/she will indeed inherit as if you intended to keep them as a beneficiary in the will.
Expert Tip: Review your Will when separation becomes serious and again as soon as the divorce is finalised. If it is not reviewed within three months after the date of divorce, the Will shall remain unaffected and remain in force.
What Happens to Child Maintenance When a Parent Dies?
A parent’s maintenance responsibility does not simply disappear on death. The Department of Justice’s Maintenance FAQs confirm that future child maintenance may be paid from the deceased estate until such time as a minor child/children may become self-supportive – which may be beyond the age of majority.
Your estate plan should therefore consider existing maintenance obligations, particularly where you have minor or financially dependent children.
The Master of the High Court’s guidance on Wills also recommends deciding what should happen to a minor beneficiary’s inheritance, for example whether it should be placed in a trust (which is written up in your will and becomes established after the death of the deceased)or paid into the Guardian’s Fund. Last mentioned is not recommended due to administrative constraints continuously experienced in various Master’s Offices across the country.
Expert Tip: Plan for both the child’s inheritance and their ongoing financial needs.
Can a Surviving Spouse also Claim Maintenance?
A surviving spouse may, in certain circumstances, have a claim for reasonable maintenance against the deceased estate where they cannot adequately provide for themselves.
The Maintenance of Surviving Spouses Act provides for a maintenance claim against a deceased spouse’s estate in qualifying circumstances. Factors such as the surviving spouse’s financial position and needs, the size of the estate, duration of the marriage and standard of living can be relevant.
This means beneficiaries named in a Will do not necessarily receive their inheritances before valid claims against the estate have been addressed.
Expert Tip: Be mindful that Maintenance ranks right at the top of financial obligations to be carried by an estate – even above certain creditors. So planning to distribute your assets without being mindful of Maintenance, is a fruitless exercise.
How Do Marriage and Asset Division Affect an Estate?
Your matrimonial property regime can significantly affect what forms part of your deceased estate or not
If you are married in community of property, one half of the joint estate belongs to the surviving spouse and does not devolve under the Will.
If you are married out of community of property with accrual, the Matrimonial Property Act provides that an accrual claim arises when the marriage is dissolved by divorce or death. The accrual of a deceased spouse’s estate is determined before effect is given to testamentary distributions.
Debts matter too. Valid liabilities and claims must be dealt with before the remaining estate can be distributed to beneficiaries.
National Wills Week: Review More Than Just Your Will
Your Will should reflect your current family circumstances, legal obligations and intentions, not the life you had five or 10 years ago.
At André de Villiers & Associates, Family & Child Law, Wills, Deceased Estates, your Commercial Interests and Antenuptial Agreements are closely connected legal matters. Whether you are getting married, going through a divorce, supporting minor children or simply need to update an outdated Will, the right legal advice can help protect the people who matter most.
Don’t leave your family’s future open to uncertainty.
Contact André de Villiers & Associates for advice on family and child law matters.
📞 076 529 3057
✉️ info@advlegalservices.co.za