Ever thought of the impact of the Constitution and other Acts on your Last Will and Testament?

Written in collaboration with Exceed Finance

The South African law of succession prescribes the rules which determine the devolution of a person’s estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased’s estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased’s estate.

Where the deceased dies leaving a valid will, the rules of testate succession apply. These are derived from common law and the Wills Act. Testate succession is governed by the general premise that the assets of the deceased are distributed following the provisions of the will. If the specified property is left to a person, the disposition is termed a “legacy.” Legacies are distributed first; any residue in the estate is given to the person, if any, who is appointed as heir. If the will appoints more than one heir, the residue is divided among them.

In 1902 a farmer and his wife determined that their land can only pass on to male beneficiaries. When his son died in 2015 with only daughters, it meant that the farmland had to be passed on to the deceased farmer’s brother’s three sons. The Constitutional Court found that the section in the Will was against the Constitution and Acts for equal treatment and unjust discrimination.

Be mindful not to unknowingly discriminating between beneficiaries based on gender, age or any other criteria in your Last Will & Testament.

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