A recent High Court judgement ruled that a woman whose male life partner died without a will should inherit his estate. But you’re still better off drafting a will…

Everyone in the fiduciary industry is talking about a recent High Court judgement which deemed certain sections of the Intestate Succession Act (ISA) to be unconstitutional. (The ruling is subject to Constitutional Court confirmation).

What has changed?

In the past, couples who lived together in a heterosexual relationship that was intended to be permanent were not covered by the ISA. This meant that if one partner died Intestate (i.e. without a valid Will), the other partner would not automatically inherit from the estate. This was in direct opposition to the laws governing married couples and unmarried homosexual life partners who did automatically inherit in such situations.

The ruling (assuming it is approved by the Constitutional Court) ensures that the same rules apply for all permanent partnerships.

What’s more, the ruling also declared certain sections of the Maintenance of Surviving Spouse Act unconstitutional. Prior to this ruling, if a heterosexual couple were living together and one partner died without providing for the surviving partner in his or her Will, the surviving partner could not claim spousal maintenance from the estate. This too has now changed.

Sentinel’s take on the rulings

Sentinel welcomes these rulings as they respect the constitutional rights of heterosexual persons who live together. There are many reasons why people might choose not to get married while remaining committed to one another. No one should be prejudiced for taking this stance.

By the same token, however, some couples might have chosen not to get married specifically because they did not want the law to apply. This opens up many more questions, including how a co-habitation agreement is affected by this ruling.

Why you are still better off drafting a will

While the ruling might go some way towards redressing what was perceived as a historical wrong, no heir or testator wants to be dependent on court rulings. We recommend that everyone (regardless of their romantic situation!) prepare a Will. This is the only way for a testator to ensure his or her assets are distributed as intended.

Dying with a valid Will is preferable to dying Intestate. Here are a few of the most important benefits:

• To select an Executor of your choice and to determine the fee
• To set up a Testamentary Trust for minor children and to nominate the Trustees (as opposed to the funds going to the State’s Guardian Fund)
• To make specific bequests to individuals or institutions in your Will. This can include a specific item or a pre-determined amount of money
• To ensure you receive the best possible tax relief for your estate that the Law allows.

The bottom line

The recent ruling takes South Africa one step closer towards achieving a fair society. Ultimately the Constitutional Court should confirm this.

That said, South African Law (unlike that in many other countries) also gives us all the privilege of the freedom of testation. This means that a person can direct exactly how their estate should be distributed upon death. Provided they have a valid Will, that is…

Make sure you have a valid will.

For further information (or to prepare a Will that truly reflects your wishes) contact Madeleine Schubert on madeleines@sentineltrust.co.za

Click HERE for further reading on this recent ruling.