THANDI XABA
More than 75% of South Africans die without a will every year while most women do not draft a will or know what the impact will be if a partner or spouse dies without leaving a will that provides for them.
According to a National Councillor of Fiduciary Institute of Southern Africa (FISA), Angelique Visser it is concerning that so many people do not take charge of their personal financial well-being.
"So it’s critical for people to understand the financial consequences if a partner passes away if they are in a relationship. So in that they in advance prepare and make they will be adequately provided for when their partner passes away, religious marriages do not meet all the requirements and are not recognised as legal marriages but the constitutional courts have widened the term spouse," she says.
Visser adds that although the courts have been very accommodating to include couples in relationships that are not recognised as marriages, this protection does not extend to all relationships.
To cater for customary law, the Reform of Customary Law of Succession Act was introduced and has to be read with the Intestate Succession Act.
As the definitions of “descendants” and “spouses” both include seedraiser women and women in woman-to-woman marriages, they benefit twice as they will be entitled to a spouse’s share as well as a child’s share from the intestate estate if the Act is interpreted literally.
It surely could not have been the intention of the legislator to benefit them twice as much as the actual surviving spouse/s? In practice the Master of the High Court regards these woman as “spouses” only and therefore does not allow them to benefit both as spouses and descendants.
This position could however be challenged in future. If the deceased had more than one wife, each wife will be entitled to R250 000 or a child’s share, whichever is the greater.
