Succession is, perhaps, a much contested issue in the courts forvarious reasons. One might argue that the testator was coerced or under duress; one might even contest the portions left in the will and so on.
Succession can be divided into two types: testate or intestate.
Testate means when someone drew up a will to determine how his estate should be divided and allocated after his death, whereas intestate refers to the situation where a person dies without a will.
Testate literally means doing away with one’s possessions at will, that is, determining who will receive what. However, if one dies intestate, one’s estate will be divided and allocated to one’s relatives according to the rules of succession – therefore, one does not have a say as to who gets what.
If a person dies intestate and he is married with children, the spouse, as well as the children, will automatically be entitled to a portion of the deceased’s estate according to the rules of succession. It is all quite straightforward if this person is married and the children are all within marriage or acknowledged. What if not?
Let us look at a different scenario. This time the person is married, has children in wedlock but then has other children out of wedlock and such children have never been legally acknowledged.
Are these unacknowledged children automatically heirs of the deceased?
No. Since this person died intestate and since these children are not acknowledged, then, to all intents and purposes, these children are not legally the children of the deceased and cannot claim any part of the deceased’s estate.
What if the person who died was not married at all but was cohabiting with a partner? Whether the cohabitation was long-term or short term, the law does not differentiate. If through cohabitation children were born and acknowledged, who will be eligible to inherit the deceased?
If the children were acknowledged, they will inherit, but since the partner is not a spouse then that partner will not be able to inherit. With intestacy, one is only protected if married or if one’s children are acknowledged.
What about separated spouses? They can renounce their right to succeed each other and thus the only heirs, if one dies intestate, would be the children. In case of intestacy, if the marriage were a childless one, and if subsequent to their separation they die childless, their estate will be divided according to the laws of succession.
Wills are revocable and thus several wills can be made in one’s lifetime. At times these can become a bone of contention.
Spouses can opt to draw up a will unica charta, which means the will of both spouses is drawn up in one instrument. In these, it is common for spouses to institute each other as universal heirs.
In order to safeguard their interests, they can also state that if either of them revokes such bequest, the spouse who has effected this will also forfeit the other spouse’s estate which is supposed to be bequeathed to him or her.
This is to protect the spouses because it will cause major prejudice, not to mention heartache, to know that one’s spouse would have cheated the other spouse of his or her share.
In testacy spouses and children are always legally protected from the testator’s actions. There are cases, most common in family disputes, where the parents or the spouses leave out their children or the other spouse from being instituted an heir or a legatee.
The law, in order to protect against such scenarios, has instituted ‘the reserved portion’, which is more commonly known as the legittima – this is an older form of the reserved portion that came into force in 2004.
In very specific circumstances, a child or a spouse, or any person for that matter, will not be able to inherit the deceased (unless the deceased would have ‘rehabilitated’ them through a subsequent will).
These are if they tried to kill, or actually managed to kill, the testator; or if they charged the testator with an imprisonable offence knowing that the testator was innocent; or if fraudulently or through coercion they induced the testator to change the will in their favour or actually prevented the testator from making a new will or falsified a will or even concealed or suppressed it.
The spouse and the children will also lose out on the reserved portion, but their reserved portion will devolve on their descendants.
Children and other descendants can also be excluded from the inheritance if maintenance was not supplied to the testator; or if the testator was abandoned when he became mentally infirm; or if the children did not release the testator from prison without a justified reason; or if the children committed acts of cruelty on the testator or have been found guilty of causing serious injury to the testator; or if the child is a prostitute without the testator’s knowledge.
Another case of disinheritance is if a person is interdicted due to prodigality or is so riddled with debts such that the reserved portion will be used to pay the debts if it is allotted to him or her.
However, just as in unworthiness, in case of disinheritance the reserved portion will be allocated to the descendants of the persons so disinherited.
May I take this opportunity to wish you a Happy New Year.
Ann Marie Mangion is a lawyer.