The importance of wills.

Connie Bruwer from PC Bruwer and Partners gives advice on this important topic.

Question:  A customer wrote that her son died without leaving a will. She wants to know what her grandson’s legal rights are. If I understand the letter correctly, the facts are more or less as follows: Her son had a relationship with someone with whom he had a son. He and the child’s mother was never married and she was later married to someone else. The child is now an adult. His mother and her lawyer is now demanding a share of the deceased’s estate. The client wants to know what her grandson’s rights are.

Connie:  First something in general and then we will look at the facts of this case. If someone dies intestate, his assets are dealt with in terms of intestate inheritance laws. This law requires that certain steps are taken and dictates who and how much one might inherit from the estate after debt obligations and other liabilities and taxes have been recovered.

If the deceased were married in community of property, the estate will be divided in two since he only owned half of it. One half remains the property of the wife (if she is the survivor) and the husband’s assets (if he is deceased) are then seen as intestate.

Then the “rule” follows that the assets should be divided according to how many children there are plus if he was married. The net estate is divided equally between the children and the wife.

If the woman’s share is less than the amount to be determined by the minister, she should at least receive a minimum amount. Currently the amount is R125 000.

If there was no spouse, the full estate will go to the children in equal shares. If one of the children dies, the children of that child will receive his / her share. If there are no children, everything will be divided in equal shares and will go to the parents etc. – always to the immediate family. Where there are no next of kin, it will be forfeited to the state after 30 years.

Therefore, the first question in our case will be: Was the man married?

Question:  How is a marriage interpreted nowadays?

Connie:  In today’s world marriage is widely interpreted, but from the client’s letter it seems to me the woman was married to someone else. I think it would be safe to assume that he was not married to her.

It seems that there were no other children, thus the son to whom the customer is referring to, seems to be the sole legal heir. According to the intestate inheritance laws he will be the only one that will have a claim to his father’s net assets. In other words, he should get everything that his father owned. The fact that the woman is his biological mother is not grounds enough for her to be a part of the estate claim.

It is of course interesting that if she dies without a will, the son can also claim her estate on the basis that he was her child, unless he is adopted by someone else.

Either way, I do not know on what grounds the woman is claiming a share of the estate. From the information, it seems that it could not be for child support and the fact that you slept with a man, does not give you a right to his estate.

I suggest the grandson goes and see the Master of the Court (a good lawyer would certainly be better, but more expensive) and try to sort this thing out, because, according to your information, he is the only legal heir and the mother’s claim appears to be her taking a chance.