It's a scenario attorneys such as Welkom-based lawyer Thubelihle Mtshali have seen time and time again.
As soon as the last-surviving matriarch of the family takes her last breath, there is already a row over who inherits Gogo’s property.
Some unmarried adult children with kids of their own have only ever known this house as their home. But, with no Will in sight, some of the other siblings are insisting the home must be sold and the money divided equally among them.
The house has been in the family for decades. Everyone assumed because it was Grandma’s house, after she died, it would be the family home for everyone – even after some siblings moved out and started their own families in new homes.
In scenarios like this, which are all too common in SA, this is when we see culture and law clashing as the death of a person who died without a valid will leaves their loved ones at loggerheads.
The family home often becomes the most contested property left behind by the deceased.
“When life gets tough, any of the siblings has the right to return home and find whatever alignment they think is best for them to face the world again,” traditional expert Mlawu Tyatyeka previously told Drum.
A family home does not just belong to one sibling or one group of siblings, many South African traditions dictate. Therefore nobody can be denied access or rights to use the home by the others because the family home belongs to all of them.
Yet many siblings end up taking each other to court over ownership of property, including family homes, that the deceased did not pass on to anyone in a valid Will.
Thubelihle is one of the hundreds of attorneys across SA who is helping people draft their Wills free of charge this week. The initiative is a joint venture between the Department of Justice and Constitutional Development, the Law Society of South Africa (LSSA), Legal Aid South Africa, and the South African Women Lawyers Association (SAWLA).
Besides causing conflict among the remaining members of your family, the dangers of dying without a valid Will, according to the LSSA, include the fact that:
- “Your assets may not be left to the person of your choice.
- “It can take a long time to have an executor appointed. The executor who is appointed may be somebody you may not have chosen yourself.
- “There can be extra and unnecessary costs.”
The Department of Justice and Constitutional Development in collaboration with the Law Society of South Africa and various stakeholder officially kick-started the National Wills Week campaign in Welkom.
All you need to have your valid Will drafted by one of the participating attorneys, says Thubelihle Mtshali of Nyapotse Inc Attorneys is:
- Your ID
- Proof of assets that you wish to include in your Will
- Details of people you wish to leave assets to
The proof of assets is not a hard and fast rule, she says, so don't let it stop you from getting your Will drafted.
“Often a will is not valid because the person who drafts it does not have the necessary legal knowledge to ensure that the requirements of the law are met,” says the LSSA.
This is why it’s better to get a lawyer to help you do it right so that your Will can’t be contested when you die.
Here’s where to go for free legal help this National Wills Week if you don’t have a Will:
- Eastern Cape
Attorneys in East London, Mthatha, Gqeberha, Graaff-Reinet, Alice, King William’s Town, Port Alfred, Queenstown, Uitenhage, Somerset East and Matatiele are available to assist. Find their contact details here.
- Free State
Attorneys in Bethlehem, Bloemfontein, Botshabelo, Brandfort, Phuthaditjhaba, Harrismith, Kroonstad, Sasolburg, Viljoenskroon, Thaba Nchu, Villiers, Virgina and Welkom are available to assist. Find their contact details here.
Attorneys in Bela-Bela, Dzanani, Ga-Kgapane, Jane Furse, Louis Trichard, Makhado, Malamulele, Mankweng, Modimolle, Mokopane, Mookgophong, Phalaborwa, Polokwane, Thabazimbi, Thohoyandou, Tshilamba, Tsaneen and Witbank are available to assist. Find their contact details here.
Attorneys in Barberton, Belfast, Balfour, Bethal, Delmas, Emalahleni, Ermelo, KwaMhlanga, Mbombela, Middelburg, Piet Retief, Standerton, Secunda and Volksrust are available to assist. Find their contact details here.
- North West
Attorneys in Brits, Letlhabile, Coligny, Klerksdorp, Mahikeng, Orkney, Porchefstroom, Rustenburg, Vryburg and Zeerust are available to assist. Find their contact details here.
Attorneys in and around Pretoria, Johannesburg City, East Rand, West Rand, Johannesburg South and the North are available to assist. Find their contact details here.
Attorneys in and around Amanzimtoti, Kloof, Pietermaritzburg, Durban, North and South Coast, Chatsworth, Dundee, Howick, Isiphingo, KwaDukuza, Ladysmith, Matatiele, Mtunzini, New Germany, Newcastle, Richard’s Bay, Stanger, Umkomaas, Umzinto, Veralum and Winklespruit are available to assist. Find their contact details here.
- Western Cape
Attorneys in and around the Cape Town City Bowl, Cape Flats, Northern Suburbs, Southern Suburbs, Bredasdorp, Caledon, Calitzdorp, Darling, Gansbaai, George, Hermanus, Hermanus, Hout Bay, Knysna, Ladismith, Langebaan, Malmesbury, Melkbosstrand, Mossel Bay, Oudtshoorn, Paarl, Piketberg, Plettenberg Bay, Saldhana, Simonstown, Somerset West, Stellenbosch, Vredenburg, Vredendal and Worcester are available to assist. Find their contact details here.
- Northern Cape
Attorneys in Calvinia, Colesberg, Douglas, Jan Kemp Dorp, Kakamas, Kathu, Kimberley, Kuruman, Postmasburg and Upington are available to assist. Find their contact details here.
“Attorneys are professionals qualified in law. An attorney can advise you on any problem which may arise with regard to your will,” says the LSSA.
“An attorney has the necessary knowledge and expertise to ensure that your will is valid and complies with your wishes.”