A reader wants to know what the process is for her to inherit her deceased aunt’s property, despite there being no will to that effect.
Her aunt recently passed away, leaving no children or spouse.
She and her mother, the younger sister of the deceased, lived with her and took care of her in her final days and apparently no other family members assisted with her care during her illness.
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Her aunt, she adds, did not draw up a will – at least not in respect of the house.
It appears that the deceased aunt was aware that she should leave instructions regarding the house, but delayed doing so.
She did, however, mention to friends and family that it was her wish that the reader and her mother continue to reside in the house after her death.
The aunt gave the reader the title deed and she and her mother continue to stay there, bolstered by her aunt’s dying wish that nobody else should be allowed a key to the house.
An initial observation is that either a will exists that does not necessarily address the aunt’s wishes in respect of the fixed property or there is no will.
If there is a will that does not contain an express bequest as to the beneficiary of the house, the balance thereof should be examined for a provision that could be interpreted to include the house.
An example is a clause that is intended to cover the residue of the deceased’s estate where the deceased directs that the balance of her estate is to be administered in a certain way.
Such a provision may follow a number of specific bequests to specified beneficiaries.
This could allow for all remaining but not necessarily named or identified fixed or movable property to go to one or more beneficiaries of that bundle of property.
If there is no will, the estate will be administered in accordance with the provisions of the Intestate Succession Act.
This provides for a systematic determination of who of the deceased’s relatives are entitled to benefit from the estate.
In terms of the requirements for a valid will, the Wills Act does contain a provision that allows the court to make a determination as to the validity of a will that does not comply with the prescribed formalities.
The act states that if a court is satisfied that a document – drafted by a person who has since passed away – was intended to be his/her will, the court shall order the Master to accept that document for the purposes of the Administration of Estates Act, 1965, as a will.
The reader’s aunt did not help matters by delaying drafting or amending her will.
Telling others of her wish in respect of her house is also of little to no assistance.
In the Supreme Court of Appeal case of Bekker v Naude, the court considered the application of a section of the Wills Act and, specifically, the intention of the word “drafted” in the context of having a third party prepare a will.
The court reasoned that it was truly the intention of the legislator to allow the courts a capacity to condone, but clearly not all prerequisites were thrown overboard.
The requirement that a will be drafted by the testator is phrased directly and for good reason.
The starting point is that requirements for a will are long-standing to try to prevent fraud and dispute after the death of the testator.
Even in allowing a capacity to condone this purpose is observed.
The requirement that a will be drafted personally by the testator guarantees a degree of reliability as it demands proof of a personal action of the testator from which his intention can clearly be inferred.
This case does, however, strengthen and highlight the strict requirements for a court to even consider a document that purports to be, or amend, the will of the testator.
One can thus understand how unlikely it is that the oral directions or wishes of a dying person could constitute a will or an amendment to one.
If the estate of the deceased aunt is administered in accordance with a valid will or the Intestate Succession Act, the beneficiaries, including the reader if applicable, could enter into a redistribution agreement allowing her and her mother to inherit the property to the exclusion of the other heirs.
It is also possible for any other heirs to repudiate their inheritance, clearing the way, as it were, for the reader to inherit.
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