Opinion / Columnist
The right to disinherit a spouse in a will and why a spouse must protect their property in marriage
24 Oct 2022 at 06:11hrs | Views
A Last Will and Testament, as a legally binding document, derives its validity from adhering to the stipulations of the law. A Will that meets all the prerequisites of a valid Will cannot be invalidated solely on the grounds that a surviving spouse has been disinherited. This principle aligns with the doctrine of freedom of testation, asserting that a testator has the liberty to distribute their property through a Will to whomever they choose.
A testator holds the authority to disinherit any family member, with due regard to the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03]. In the notable case of Chigwada v Chigwada SC-188-20, the court emphasized that denying a person married out of community of property the right to dispose of their property as they see fit through a Will undermines the fundamental tenet of freedom of testation. De Waal & Malan[1] emphasize the perspective that "Nobody has a right to inherit. Leaving someone out of a will as a beneficiary therefore does not amount to an encroachment upon or taking away of an existing right."
A surviving spouse can indeed be the subject of disinheritance through a Will that complies with all the formalities required for a valid Will.
Furthermore, the Wills Act imposes stringent formalities for the proper execution of a valid Will. Section 6 of the Wills Act outlines specific individuals who are ineligible to benefit under a Will. This includes witnesses to the testator's signature, someone signing on the testator's instructions, the writer of the Will when provision is made for their benefit, an official certifying the Will, a guardian or curator of the testator, and the spouse or child of any of the aforementioned.
Moreover, the Act disqualifies individuals who have benefited from a Will through fraud, duress, or undue influence on the testator. Additionally, those who conceal or destroy a Will, unlawfully or intentionally kill the testator or the testator's spouse or child, and those who use any other unlawful method to obtain a benefit under a Will are also barred from benefiting.
Given the potential complexities and legal intricacies, seeking the assistance of a lawyer is imperative to ensure compliance with legal requirements when drafting a Will. Wills are often subject to contests, and failure to adhere to legal standards may result in the invalidation of the Will, making legal guidance crucial to safeguarding one's testamentary intentions.
A testator holds the authority to disinherit any family member, with due regard to the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03]. In the notable case of Chigwada v Chigwada SC-188-20, the court emphasized that denying a person married out of community of property the right to dispose of their property as they see fit through a Will undermines the fundamental tenet of freedom of testation. De Waal & Malan[1] emphasize the perspective that "Nobody has a right to inherit. Leaving someone out of a will as a beneficiary therefore does not amount to an encroachment upon or taking away of an existing right."
A surviving spouse can indeed be the subject of disinheritance through a Will that complies with all the formalities required for a valid Will.
Moreover, the Act disqualifies individuals who have benefited from a Will through fraud, duress, or undue influence on the testator. Additionally, those who conceal or destroy a Will, unlawfully or intentionally kill the testator or the testator's spouse or child, and those who use any other unlawful method to obtain a benefit under a Will are also barred from benefiting.
Given the potential complexities and legal intricacies, seeking the assistance of a lawyer is imperative to ensure compliance with legal requirements when drafting a Will. Wills are often subject to contests, and failure to adhere to legal standards may result in the invalidation of the Will, making legal guidance crucial to safeguarding one's testamentary intentions.
Source - Clifford Ncube
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