Dying without a will, otherwise known as intestacy, is common in South Africa. This is a big mistake as the possessions of the deceased may then be distributed against their wishes. We invited Hanneke Farrand, head of private clients department at ENSafrica, to explain how your possessions are distributed when you die intestate.

The law will determine the beneficiaries

According to Farrand, the family of the deceased will not be able to determine the distribution of the assets in the estate.

“In the absence of a will, the estate may only be devolved in accordance with the rules of the Intestate Succession Act,” said Farrand.

Your word is not enough

Some people die with the hope that their verbal instructions will be carried out, but it is not the case. According to Ferrand oral wills are not legally recognised.

“Both the provision and the Act itself do not make mention of oral wills, thus the formalities for a valid will do not permit oral wills,” she said.

What about the right of primogeniture?

In many African cultures, it is still believed that the first male child should inherit their parents’ properties. However, this was ruled as unconstitutional in 2005.

“With reference to male primogeniture, the Constitutional Court held this unconstitutional in the case of Bhe and Others v Khayelitsha Magistrate and Others; 2005 (1) SA 580; it was held in this case that all intestate estates would be administered in accordance with the Intestate Succession Act,” explained Farrand.

Does this take away the relevance of customary law?

As with many African societies, South Africa has many unwritten conventions and some people believe these will favour them in court.

“As per section 211 of the Constitution of the Republic of South Africa, 1996, customary law must be applied where it is applicable.  However, its application will always be subject to the constitution,” said Farrand.

So, where customary law contradicts the values and objects of the constitution, the constitution will prevail.

What about the Islamic law?

The Islamic law of succession contains restrictions on a testator’s right to distribute their assets on death.

“A Muslim is entitled to bequeath up to one-third of their estate to third-parties who do not qualify as their legal heirs under the Islamic law,” explained Farrand.

“The remaining two-thirds will devolve upon their legal heirs who are determined at the time of their death in accordance with the rules of the Islamic law,” she added.

Farrand concluded the only way that people can ensure that their wishes are honoured is by drawing up a will. According to her, Section 2(3) of the Wills Act condones documents that were drawn up with the intention of the creation of a will, but which do not comply with the formalities as they appear in the Wills Act.”