National Wills Week: What happens when your partner dies without leaving a will behind?

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Bianca Naidoo and Riky Rick
Bianca Naidoo and Riky Rick
  • National Wills Week, which takes place from 12 September 2022 to 17 September 2022, aims to educate people on the importance of leaving a will.
  • Recently, the long-term partner of the late Riky Rick, Bianca Naidoo, reportedly applied to be recognised as his legal wife to access his estate because he did not leave a will behind.
  • Legal experts say everyone has some form of assets they need to plan for, which aren't necessarily a house or a car. 

National Wills week, which aims to educate South Africans about the risks of not having a valid will in place and highlight the benefits of proper financial planning, is upon us and will end on 17 September 2022.

While many are having important conversations around this topic, the recent news that the late Riky Rick didn't have a will has brought the need for proper estate planning into sharp focus.

According to reports, Bianca Naidoo - his long-term partner and mother of his children - has filed papers where she requests Home Affairs to recognise her as the legal wife of the rapper so she can have access to his estate.

This type of situation is nothing new in South Africa, says Felicia Hlophe, legal adviser at Allan Gray.

“Many investors overlook the importance of good estate planning when thinking about their broader financial plan. Neglecting to think about what will happen to our assets when we are gone can have disastrous consequences for our loved ones,” she explains.

Research by Sanlam shows that South African women are almost 20 percent less likely to have a will than men - a concerning statistic considering that 42 percent of South African households are headed by women. 

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Moremadi Mabule, head of wills operations at Sanlam Trust, says, “It is concerning that so many women are not exercising their right to choose who inherits from their estate, known as freedom of testation. Due to structural inequalities, women are playing catch-up when it comes to controlling their finances. This trend will change as more women take control of their financial destinies.” 

The importance of a will

Nearly half of people who don’t have a will believe they don’t own enough assets to warrant estate planning. According to Mabule, this is a misconception that can have grave consequences. 

“Everyone has some form of an asset and having a will in place goes a long way toward helping those who depend on you to live confidently. This doesn’t only include big things like a car or a house, it should also include jewellery, investments and sentimental items – even digital assets such as photos in the cloud and cryptocurrency,” she explains.

“For parents, your will should also provide for guardianship of your children and a plan to care for your pets. Estate planning gives you peace of mind knowing that your intended beneficiaries will inherit and avoid unnecessary turmoil during an already difficult time for your loved ones,” she continues.

“As parents, we need to make sure our children’s needs are accounted for in the tragic event of our untimely death,” Hlophe adds.

Speaking to TRUELOVE, Hlophe explains what happens to the estate of those who die without a will:

What happens when someone dies without leaving a will behind?

If you die without a valid will, your assets will be distributed according to the Intestate Succession Act. This may result in your assets being inherited by people other than those you would like to leave those assets to. The winding up of your estate could also take longer and cost more.

What happens to the children of a deceased parent who did not appoint a legal guardian in their will?

If you do not appoint a legal guardian for your minor children in your will and both parents pass away, a legal guardian may be appointed by the High Court of South Africa. A court application can be a lengthy process, which could leave your children without a guardian for a significant period. 

If you leave assets to minor children who do not have a legal guardian, you run the risk of these assets being transferred to the government’s Guardian’s Fund. The Guardian’s Fund will administer these assets until your children turn 18. 

Claiming from the Guardian’s Fund on behalf of a minor is an administration-heavy process and not ideal when funds are required immediately for your children’s needs. Retirement funds are treated differently.

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In the case where the deceased had a life partner or person they were cohabiting with but did not leave a will behind, does the life partner have the legal right to claim from the deceased’s estate?

Yes, the landmark Bwanya ruling at the Constitutional Court last year confirmed that the Maintenance of Surviving Spouses Act and the Intestate Succession Act must include a person in a permanent life partnership.

Currently, the Acts read:

Intestate Succession Act: If you die without a will, your estate will be divided among your surviving spouse (including a same-sex partner and a spouse by customary marriage or religious rites) and your children. If you die without leaving a spouse or children behind, your parents and siblings stand to inherit.

Maintenance of Surviving Spouses Act: If your spouse passes away, you have the right to claim for maintenance against his or her estate.

The Legislature has been given 18 months to take steps to cure the constitutional defects in the Acts to include surviving life partners.

Under what conditions can this life partner claim from the deceased’s estate? Which factors should be proved?

With regards to the Intestate Succession Act, the amendments may mean a life partner’s intestate claims will rank equally to a child heir’s claim. With regards to the Maintenance of Surviving Spouses Act, the act provides that a surviving spouse – which will now include a surviving life partner – has the right to lodge a maintenance claim against his or her deceased “spouse’s” estate if they are unable to support themselves.

The burden of proof will be on the surviving partner. For example, in the Bwanya ruling there was evidence of intent to marry and reciprocal duties of support from bank statements, etc. The assessment of whether the relationship was intended to last for an indefinite period, and is thus considered “permanent”, will be based on a review of all the facts and circumstances applicable to the particular scenario.

Further examples could be that the life partners jointly owned property or had joint accounts. There will need to be more clarity on what constitutes proof, with guidelines from various High Court cases. It is advisable that life partners enter into a full cohabitation agreement recording exactly what their status is and what undertakings they make to each other. As there is no such thing as a “common law” marriage in South Africa – if you aren’t formally married, a cohabitation agreement is a safe alternative.

What should one consider before drafting a will?

There are various things to consider depending on one’s circumstances, however, one should consider the following:

  • The nature of your marriage contract or cohabitation agreement
  • The age of your children (if any) – making provision for a legal guardian for your minor children in terms of your will should be paramount
  • Any assets intended for minor children
  • Executorship and co-executorship – who is the person who will be in charge to manage and wind up your estate
  • Assets that fall outside your estate – you cannot, for example, include retirement funds

Overall it is important to consider the value of estate planning as when it is done right it can reduce estate duty and ensure liquidity in one’s estate.

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