20210913 Have the Will Power to Protect you and your loved Ones

The Covid-19 pandemic has made a lot of people reprioritise their lives, and this has meant a lot of difficult conversations around life, money, and the people we love. Choosing beneficiaries, guardians and deciding how to divide your assets is tough, but we shouldn’t shy away from talking to the people we want to inherit from our estate. If you die without leaving a valid will, your estate will, according to the Intestate Succession Act, be distributed among your surviving spouse, children, parents, or siblings according to a set formula. This means that others whom you would like to inherit from your estate may not be catered for.

What’s love got to do with it?

Did you know that unmarried partners struggle to claim from an estate, regardless of how long they were in a relationship with their deceased partner? This was a central aspect of a recent case in the High Court in the Western Cape, where the court was asked to broaden the definition of “spouse” under the Intestate Succession Act. The court found the definition of “spouse” to be unconstitutional and referred the matter to the Constitutional Court for consideration.

Interestingly, while previous case law allowed unmarried same-sex partners in a long-term cohabitation relationship to claim from the estate of the deceased partner, in this matter the unmarried partner, Ms Bwanya, was unable to claim from her deceased partner’s estate because the definition of “spouse” in the Interstate Succession Act does not include unmarried heterosexual partners.

In 2004 the definition was changed to include monogamous and polygamous spouses and partners in Muslim marriages as well as customary marriages and unions. Then in the 2007 case of Gory v Kolver, the court further extended the definition to include a “partner in a permanent same-sex life-partnership in which the partners have undertaken reciprocal duties of support”.  And now in the Bwanya case, the definition, once settled by the Constitutional Court, is set to include “a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support”. In her application, Ms Bwanya successfully asked the court to extend the definition of “life partner” to all romantic relationships, regardless of gender.

While this ruling could set a precedent for future claims, it has yet to be confirmed by the Constitutional Court, meaning that until there is clarity, it is easier to have a valid will in place so you and your partner can avoid the court system entirely.

Even considering this ruling, an unmarried “spouse” will still have to prove that the relationship included a reciprocal duty to support each other to be considered as an heir of the deceased. Beyond drafting a will, it is also important to ensure that on your death your debt is settled. This can be done through life insurance. Investing in a life policy means that a pay-out could cover your debts and allow your family to inherit the remainder.

Planning for the future isn’t easy, but the peace of mind you can get from having these conversations with loved ones and your financial planner, is priceless.

Stay Safe,

Jacques

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