A person can inherit either testate, when a valid Will is in place, or intestate, where there is no Will or an invalid Will. In the latter cases, the Law of Intestate Succession will be applicable.
In terms of the Law of Intestate Succession, a person’s estate will devolve upon certain family members as dictated by law, which is not always what a person wants. It is better to have a Will in place and thus the freedom of choice. Heirs inheritances can then also be protected from future marriages and a testamentary trust be created for minors.
At first glance, bequeathing items to an heir seems like a straightforward and easy enough task. It is a simple case of who gets what, right? But it is possible that a nominated heir may be disqualified from inheriting.
The question of who may inherit has been raised by the public during recent murder court hearings. The question asked was: How fair is it that someone found guilty of the murder of, for instance, a wealthy parent, inherits a fortune?
There are indeed certain circumstances that can disqualify a potential heir:
- Anyone who is found to be responsible for the death of a person, whether intentionally or due to negligence, is disqualified from inheriting from that person. A time-consuming police investigation needs to be held if this is suspected to be the case, and the administration process will be delayed pending this investigation and judgement by the court. The accused can still inherit the assets if acquitted of the charges.
- If the court finds that an heir influenced the testator’s life in a negative manner and acted in any way detrimental to his or her wellbeing, he/she is disqualified from inheriting (for instance a spouse who involved the deceased in any unlawful activity during his or her lifetime).
- An heir who is found by the court to have influenced the testator to bequeath items to him/her in the Will, is disqualified.
- A potential heir might also be disqualified if the Will is written in his/her handwriting, even upon instruction of the deceased. However, he/she may be allowed to inherit if it can be proven in court that he/she did not influence the testator or the stipulations of the Will in any way at the time.
- In terms of the Estate Act, any person who is found guilty of damaging, forging, destroying or hiding a Will is guilty of a crime, and is thus not allowed to benefit from it.
- If a nominated heir or his/her spouse signed as a witness, it may disqualify him/her from inheriting anything from the estate. Such a person will still be allowed to inherit what he/she would have inherited in terms of the Law of Intestate Succession or if it can be proven in court that he/she exerted no external influence on the deceased when the Will was being drafted.
- Adopted children will not automatically inherit from their biological parents’ estate unless specifically nominated as beneficiaries in a Will. The bond between an adopted child and his/her biological parents was legally dissolved when adoption took place.
- Other special conditions stipulated by the testator may disqualify a potential heir from inheriting. For example, bequeathing a property to a son on condition that he books into a drug rehabilitation centre and stay clean for the period of a year. If these conditions are violated, the heir will be disqualified.
Leaving items to an heir is not just a simple case of who will be getting what. The process is somewhat more delicate and complex than it seems at first, and careful thought has to be given to the drafting of a Will.
The thought of drafting a Will might be overwhelming. Rather consult with Wealth Associates Fiduciary Services, who have the best interests of all parties at heart. Since Wealth Associates Fiduciary Services is impartial, a potential heir will, for instance, not be disqualified because of a Will drafted by him-/herself. Knowledgeable, professional and sympathetic to the situation, Wealth Associates Fiduciary Services, along with your financial adviser, can give the best advice possible and be of assistance through every step of the process. This will make the eventual process easier for all loved ones, still making sure that everyone gets his/her share.
With acknowledgement to Legatus Trust