Traditional and customary marriages – why drafting a will is important

The Pretoria High Court recently ruled against an applicant’s request to acknowledge her as the rightful heir to her long-time partner’s estate. In this specific case, the deceased was married to his estranged wife through a customary marriage, but they never officially divorced, leaving little room for the applicant, who had been sharing a life with him for 13 years, to be considered as a spouse.

When a couple has a traditional or customary marriage, the spiritual leader is required to register the marriage with Home Affairs. Thereafter, the marriage is recognised by South African law as legal. When the marriage ends the couple needs to file for divorce. If they do not, there can be no other legally recognised spouse. Anyone else with whom the married partner creates a life with is colloquially known as a life partner. It is also important to note that South African law does not recognise polygamous marriages.

In South Africa, very few laws acknowledge a life partner – one that does is the Estate Duty Act.

The laws that govern whether someone inherits (Law of Intestate Succession, Maintenance of Surviving Spouse’s Act, for example) do not acknowledge a life partner. Therefore, a life partner does not stand to inherit legally unless it is an express instruction in a will, or ruled by a competent court.

What this court case ruling means to the deceased’s new life partner is that she walks away with nothing and the estranged wife inherits everything.

“We can take a leaf from so many other South Africans books, especially with women who have learnt the hard way that without a valid will, they are often left destitute after the death of a life partner,” shares Alex Simeonides, CEO of Capital Legacy.

According to the firm, in the last year alone, there have been many cases of women left uncertain as to where they stand because their spouses did not have a valid will.

An example of such is a case is deceased HHP’s customary wife Lerato Sengadi, who had to fight for her right to be recognised as a customary wife after she was excluded from his will.

“As a country, we are already fighting GBV (gender-based violence), and I do not believe we need to add to this by leaving spouses uncertain and destitute,” said Simeonides.

Besides nominating someone as the beneficiary on your life insurance, the only way you can guarantee that they will benefit from your estate when you pass away is to give this instruction through your will.

“For various reasons, South Africans hesitate and delay drafting their wills, so often it is too late. The only guarantees we have is death and taxes, and when you don’t provide for either, it’s your family and loved ones that are left to carry the burden,” says Simeonides.

Capital Legacy advised the following should be kept in mind when drafting and signing your will:

• It needs to adhere to the will signing guidelines.
  • It needs to be signed with ‘wet’ ink, which means printing out a hard copy and signing it with a pen.
  • It must be witnessed by two independent witnesses who are not mentioned in your will.
• The content should not be contradictory.
  • You cannot place contradictory conditions in your will that will create confusion with regards to your will as this may invalidate a part of your will or the will in its entirety.
• You cannot give away what is not yours.
  • If you are married, your marital regime has a great effect on what is legally yours to give away.
  • Additionally, all your debts will be paid before your beneficiaries can inherit.
• You cannot rule from the grave.
  • You may not place conditions on an inheritance, such as ‘my daughter needs to marry a doctor before she may inherit’.