What Happens To Assets When A Deceased Did Not Leave Behind A Will?

I have always had the privilege of being taught by some of the best lecturers in my fields and that is something I do not take for granted, today's piece will somewhat be a dedication to one of my favourite lecturers who has unfortunately since retired. 

He is so brilliant that I still remember things that he taught us in first year which meant I was always excited for class, in fact I think this is the only time I can speak like a Comrade and speak on behalf of my classmates and say there is no one in my school that is not in awe of the man. 

I remember writing him an email in the AMs in the last week of the academic year prompting him to consider applying to the Higher Courts because I am so confident that the country can benefit so much for his vast knowledge and expertise.

Anyway, today I would like to share with you a few things regarding the Law of Succession because the 'my people perish [insert suffer] because of lack of knowledge' saying is very common when people are faced with a loved one passing on without a valid will. This is because of a number of things, a lack of knowledge as stated, the strenuous legal fees attached with long hours spent going in and out of court especially if the process won't be as straight forward as it would had there been a will left by the deceased. 

I think before we go further, we need to first look at the definition of what a will is and what makes a will valid and although the Wills Act 7 of 1953 does not give a straight forward definition of what a will is, it can be quoted as ""will" includes a codicil and any other testamentary writing" but in everyday language, we can define a will as a deceased's final wishes on how they wish for their assets to be distributed post their death, that is who gets what of what they're leaving behind. 

When we're dealing with matters concerning wills, we're normally faced with a few common scenarios. You either have someone that passed on and they left behind a legally valid will or you have someone that passed on without a will, the former is called Testate Succession whilst the latter is referred to as Intestate Succession. 

There is so much that the Court considers when admitting a will as valid, things such as who wrote it because the person who is drafting it has to have testamentary capacity to do so and only people that are 16 years or older can write their own wills although to stand as a witness to the drafting of a will requires one to be 14 years or older); the 'mental fitness' of the testator, is this person sound enough to appreciate the effect and consequences of such an action, it's not every 16+ year old person that has the mental capacity to draft a will or even enter into a contract. 

Lastly, the Court also considers the state of the testator at the time they drafted it and if indeed making this document their final will was their intention i.e. they didn't draft it under the impression that it's a contract and they were not under duress of any sort, it has to have been done out of free will. In some circumstances, the Court does give condonation to admit a will is formally defective i.e. a testator needs to sign their will but say they did not sign their documents but it can be proven they wrote it and indeed it was their wish for it to be a will because this is very common amongst elderly people who, because of a number of reasons, scribble their own wills. This is assessed and done on a case by case basis. 

When someone has passed on and they left a will, it does not matter how 'unfair' or absurd some of their instructions may be in terms of who should or should not benefit, the Court cannot make a new will on behalf of the deceased, it's duty is simply to interpret the will and act accordingly i.e. if they have 5 descendants and they choose to only share their assets among 4, the court can't draft a new will to include the 5th. We assume the deceased knew this fact and they made their own choice in spite of it, after all, those were their wishes. 

Intestate Succession is a bit more complicated and even then, we're usually met with a number of different scenarios. You can have a deceased leaving behind only a spouse with no descendants or descendants with no spouse or most commonly, both a spouse and descendants.  There are a few rules that apply depending on the situation at hand, when a deceased is only survived by their spouse, the spouse inherits the entire estate, in the event they did not leave behind a spouse but only descendants, the descendants will have to share the estate equally among themselves. 

The most interesting and most complex is when they're survived by both a spouse and descendents, the spouse is often 'favoured' over the descendants for the purposes of succession so what happens here is that the spouse either inherits a child's share of the estate or R250 000 that is fixed in the Government Gazette, whichever amount is greater between the two. In cases where the entire estate combined does not exceed R250 000, the spouse inherits everything. 

If the child share is less than R250 000, they  have to inherit the R250 000 fixed by the GG and the descendants will share what's left of the estate amongst themselves. This is how we calculate an intestate child's share if our intestate estate is R1 500 000: 

             

                                 total value of estate

Child's share= 

                         no. of descendants + spouse

  

                               R1 500 000

                                      1+6

                

                               R1 500 000

                                        7   

                             = R214 285, 71

So because this figure is lower than the R250 000 set in the GG, they will inherit inherit R250 000 and the children will share the residue amongst themselves. 

It's slightly different if the deceased and their spouse were married In Community of Property because before anything is done, whatever estate is there has to first be halved so that the spouse gets their equal share then we can make further calculations, i.e. the spouse has gotten her half share so now we're dealing with half ot the estate which we will distribute according to the same method as above: value left after estate was halved ÷ no. of descendants + spouse (which is the child share and if the child share is lower than GG amount, spouse inherits R250 000 and descendants share the residue equally). 

Side note, Mathematics has dribbled me since High School, I cannot overemphasize how much of a relief it was to learn that one does not need it to study Law.