March 16, 2017

Wills: Optional or Essential?

Robin Twaddle

You may have noticed that we write about wills quite often. This is because, as lawyers, we cannot stress the importance of having a will enough. Just as trauma doctors see the consequences of drinking and driving first-hand, we see the consequences of dying without a will first-hand.

I suppose our natural resistance to doing a will has something to do with our reluctance to confront our mortality. If we give it any thought at all, we tend to think that we are invincible, that the bad things that can happen out there in the world won’t happen to us. But, without being morbid, we have quite a slender grip on life. And it is a grip over which we have absolutely no control.

When I think of the number of relatively young people (meaning under 50 – and yes, millennials, 50 is young!) whom I know who have died over the past few years, my blood runs cold. Bicycle accidents, car accidents, cancer, heart attacks, aneurysms… The number of people who got up on a particular morning full of plans deep into the future whose lives were suddenly snuffed out is scary.

Intestate succession follows family relationships. If you die without a will, your spouse and children inherit your estate (in equal shares, subject to the proviso that your spouse’s share must be at least R250,000). If you are married but have no children, your spouse gets everything.  If you have no spouse but children, the children get everything, then your parents, then your siblings and so on.

This doesn’t sound like a problem if you are young and unattached or newly married with no children.  But life quickly gets complicated.

Without sounding like a life insurance salesman who is full of stories of clients who took out a policy one day and were diagnosed with this or that dread disease the following day, I want to tell you about 2 cases that I am currently involved in that pertinently demonstrate the importance of having a will.

Case one was a 33-year-old man in good health. He had been through a rough patch after his first marriage fell apart, but his life was coming back together nicely. He had a good job with great career prospects. He was engaged and due to be married later this month. He and his fiancée were living together and had made advanced plans for their life together. Early one Sunday morning he died of an aneurysm. He had no will, and his fiancée is legally entitled to nothing.

Case 2 was a 39 year old woman. She and her partner had lived together for 20 years and had 2 young children together. They had simply chosen not to involve the state in their relationship by undergoing a civil marriage ceremony. But for all intents and purposes, their relationship was no different from any married couple. On the contrary, it was probably more stable and secure than many marriages!

The house was in the woman’s name. Her partner, her husband for all intents and purposes, and the father of her children (and the guy who now has to take care of the children as a single dad and sole provider), is legally entitled to nothing. Not even her provident fund.

In both of these cases, there is no doubt that the deceased would have wanted their fiancée and their partner to respectively get their entire estates. But because they left no wills, that can’t happen.

Wills aren’t for people who have been diagnosed with a terminal disease and who been given 6 months to live. Wills are for all of us, no matter how little or how much we have.

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