- 75% of black South Africans do not have wills, according to Sanlam research, and this can affect spouses and legally adopted children.
- According to the current legislation, only blood-related family members can inherit assets of the deceased if they die without a will.
- Although this may be the case, the Constitutional Court recently ruled that the definition of 'spouse' should be amended to include all life partners.
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A will means you have the final say about where your assets go when you're gone, but according to Sanlam research, 75% of black South Africans do not have one, and this can have a huge impact on spouses and adopted children.
Under the current legislation, blood relatives of the deceased are the only ones eligible to claim what belonged to the deceased, leaving behind close family members who are not blood related such as their spouse and adopted children.
"The general rule is that only blood relations of the deceased and their descendants may inherit should someone die without a will. This includes children, grandchildren, parents, brothers, sisters, grandparents, uncles, and aunts.
"The surviving spouse and legally adopted children are exceptions to this rule. Nobody else, even if they are financially dependent on the deceased, has a claim on intestacy (when you die without a will) as per the current legislation," said Head of Wills Operations at Sanlam Trust Moremadi Mabule.
Although this is the case, the Constitutional Court recently ruled that the current definition of spouse – in the Intestate Succession Act and Maintenance of Surviving Spouses Act – is unconstitutional as it excluded life partners in long term or permanent relationships.
As a result, the court ordered Parliament to amend the specific laws within 12 months to ensure that life partner's rights to inherit and claim are recognised after the death of their partner.
Why black South Africans don't have wills
Lack of knowledge about estate planning, financial literacy, and procrastination are some of the reasons many black South Africans do not have wills.
"While financial literacy does still need attention, the main issue around the lack of estate planning seems to be procrastination. People know that it is important, but do not see it as something to do immediately.
"When you combine that with the prevailing idea that you need a certain amount of assets to justify having a will, this is a recipe for disaster. 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," Mabule said.
How to draft a basic will
According to Sanlam, a basic will can be drafted by completing a will application form, preparing a list of assets and liabilities, instructions on what needs to happen to the estate and the details of beneficiaries.
A simpler route would be to write one up or type it out at home and keep a cope where it will be easily found while keeping the other copy safe.
Choose trusted witnesses and sign your dated will in their presence. Ensure that all other previous wills are revoked.
Those who have a more complex estate and intricate circumstances might need to consult with a financial adviser for an estate plan or will.
"Dealing with the fallout from not having a will in place is something that no one wants to do when a loved one passes. It is also important to update your will regularly or as your circumstances change to ensure it accurately reflects your wishes," said Mabule.