Even though Jacaranda trees are not indigenous to South Africa, they have become synonymous with the streets of Pretoria. October is one of the prettiest months of the year when these beautiful purple trees decorate the sidewalks of the city. This is one of the reasons why October is described as the most beautiful time of the year, as nature buds into a breathtaking kaleidoscope of colour throughout South Africa.
It might sound like a cliché but these gorgeous changes that take place in nature are a reminder that out of ashes, beauty can grow. No matter what life throws at you, or what circumstances you find yourself in, there is always that ray of hope that change is on its way.
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Most people have a desire to leave a legacy to their children that will benefit them as well as the generations to come. In doing so, the first line of descendants is, generally, the first choice when it comes to bequests. Thereafter, grandchildren, other special persons, and so forth. There is nothing wrong with this traditional train of thought when it comes to beneficiaries as every person has the freedom to choose to whom they would like to leave their earthly possessions when they pass away.
Nico van Gijsen, Managing Director of Finlac, published an interesting article regarding a parent’s obligation (or not) to bequeath their assets to their children.
A reader posed a question to him. They wanted to know if they should change their joint Will and bequeath their assets to their children, rather than to their surviving spouse. The reason for this question was unclear. It could have been that the reader wanted to prevent their surviving spouse from possibly squandering the inheritance of the children. Van Gijsen’s response to the question was very interesting and provided a lot of food for thought.
Van Gijsen is of the opinion that it is not a given right that children must inherit from their parents’ estates. Even if the relationship between children and their parents is not problematic, it still does not mean that they have a right to inherit. An inheritance should rather be viewed as a coincidental privilege, or a bonus of sorts. It is more important to look after yourself and, after passing away, to provide and care for your spouse or your life partner.
In South Africa, the right to make your own Will is highly regarded and taken very seriously under the law. Even when a joint Will is signed, it still represents two separate Wills. When a couple is married in community of property, it does not imply that a joint Will must be signed. Each person can still draft their own Will, even without consulting the other party, and decide how to bequeath their share of the joint estate.
There will always be a mutual legal duty of maintenance and the surviving spouse will have the right to claim for maintenance against the estate. This right is granted under the Maintenance of Surviving Spouses Act 27 of 1990. This law intends to provide for reasonable maintenance
should the surviving spouse not be able to provide for or take care of themselves. This type of claim is lodged directly with the executor and does not have to be lodged with the court. Historically this maintenance right was limited to persons who were legally married, as confirmed, in the 2005 Volks v. Robinson case, where the court concluded that a person has the right to choose to marry or not to marry. The term “spouse”, in the legal sense of the word, however, came under scrutiny in the Bwanya v. Master of the High Court in the Western Cape High Court early in October 2020. The court found that Section 1 of the Intestate Succession Act 81 of 1987 was unconstitutional, as it excludes life partners in a relationship intended to be permanent, from the definition of “spouse”, and thus the section had to be re-written. This decision was upheld in the Constitutional Court ruling in December 2021 in the court case of Bwanya vs. Master of the High Court.
Later this year, the Judicial Matters Amendment Bill will come into law, giving life partnerships the same legal status as a spouse when it comes to testate law. What is, however, unclear is what defines a life partnership. In the meantime, however, we can assume that the same claim right will hold true for surviving life partners. This type of claim holds the same legal force as the claims of minors.
A surviving spouse deserves to live a life of dignity, which is enshrined in financial independence. That power and decision ultimately rests in the hands of the first dying spouse who can provide this life of dignity to their surviving spouse.
Let us consider a wider angle to the initial question that was posed. Today not only can a man be the breadwinner but so too can a woman, as both nowadays contribute according to their ability and their specific needs.
Statistically though, men die younger than women, and more often than not, most of the assets are in the husband’s name.
Let us have a look at a scenario: The testator (husband) passes away and it is found that he bequeathed all of his assets to his children. His spouse (wife) must now move in with one of their children. She may be rid of a controlling husband, but she is immediately dependent on her child’s kindness and mercy. There is, however, no guarantee that she will be cared for adequately. Apart from that, her human dignity is at stake because she has become financially dependent on the child that she must stay with. It is a fact that financial independence is one of the foundations of human dignity. The message from such a decision by the testator is that she cannot take care of herself. She will squander the inheritance because she is not clever enough to handle her own financial affairs.
Another angle could be: What if there are three children that must supposedly inherit equally but only one of the children must now take care of their mother. Have they really inherited equally then? Maybe the child with whom the mother must live is married and they have children of their own. Will their spouse or partner be content with a parent moving in and staying for “free”? A parent that unavoidably must now also be taken care of. This seems like an injustice, not only to the surviving spouse but to the encumbered child as well.
Van Gijsen is of the opinion that spouses or partners should first look after each other. He strongly suggests that no child has the right to inherit. Should a child receive an inheritance while the spouse is still alive, this should be seen as a windfall.
The final decision on who inherits what ultimately lies with the testator, as this is a luxury afforded to all under South African law.
MARY WOHLFORD’S COFFIN IS ON DISPLAY
Mary Wohlford, a sprightly 97-year-old lady from Dyersville, Iowa, does not fear death nor the controversy surrounding her unusual decisions.
Her first international headlinestory occurred 18 years ago, when she had the words “do not resuscitate” tattooed on her chest to make her end-of-life wishes permanently known. Then, about eight years ago, Mary bought her coffin from an Amish cabinetmaker for just $400. This was assumably a very good price, as she was quite happy with the fact that she could donate the savings to charity.
The presence of her glossy pine coffin, which is on display near the front door of her home, does not bother Mary. “My circle of life is closing”, she said. “I’m ready to go. What the heck, I think I did my duty in life, and it’s the next generation now.” Mary raised eight daughters, worked as a nurse for decades, and, following retirement, travelled the world, administering care as a volunteer with Medical Ministry International.
“Wood is wood”, she said. “Dead is dead.”