Dying and The Law - Hospice Palliative Care Association of South ...

CHAPTER12Dying and The LawIntroduction 178Dying with a will - testate succession 181Dying without a will – intestate succession 185Customary law of inheritance 187Taking care of the children 188The legal process after someone dies 189When someone dies at home 191Funerals and planning 192Final check 193Chapter 12 | Dying and The Law177

INTRODUCTION‘Because people do not like totalk about death, especiallytheir own death, their silencecauses lots of problems.’‘The stigma of having HIVaffects the way people talk totheir families and this meansthat they don’t make any plansfor when they are not around.The sick person says to us astheir caregivers, `Don’t tellthem (the family) that I am HIVuntil I die, even if they ask youevery day don’t tell themanything.’Caregivers’ stories from Sowetoand PietermaritzburgDeath is an inevitable fact that we willall need to face at some point in our lives,be it our own death or the death of aloved one. What is also inevitable is thegrief that we will encounter as a resultof losing someone who is close to us.Because we all cope differently with loss,it is important to think about ways inwhich we can protect ourselves and ourloved ones from the additionaladministrative and financial burden thatoccurs after someone has passed away.It is also important to encourage familyand friends to start talking about ways inwhich families and loved ones can preparefor the loss of their loved one.Families and friends should think ofbuilding a network of support; wherethere are people they can rely on andtrust during times of loss and sadness.Sometimes people are not comfortabletalking about death and this can havea negative impact on sorting out aperson’s affairs before they die. Hereis a short exercise to rate your ownresponse to the topic of death.1) Consider the question `I can talkquite openly about death.’Answer yes or no to this question.2) Now using a scale of 1-10, ratehow comfortable you will be ineach of the following situations:ABCTalkingabout DeathI can talk quite openly about thedeath of a stranger/someone Ido not know.I can talk quite openly about myown death.I can talk openly about the deathof my parent or loved one.Building a Trust RelationshipHome-based palliative care services support patients and their families inpreparing for the death of a loved one. This support is most effective when thepatient and family have developed a relationship of trust with their carers, sincewithout this trust relationship many problems can arise.Topicfor discussionIn small groups, 2-3 people pergroup, read the stories andanswer these questions:a) Have you ever come acrosssimilar experiences in yourwork?b) What do you think of thedifferent approaches takenin each of these stories?c) Do you think it is importantto build a trust relationshipin similar circumstances tothose described above, why?The following stories were told by caregivers who were working in Soweto andin Pietermaritzburg:Story 1‘Hey this one is a big problem (whenpeople are not talking about death)you will find that the parents, whenthey passed away, they don’t even tellthe family where the children aresupposed to go. They die and thechildren are left in the house andsometimes you find that, most like,the uncles they come to fight for theproperty. They want to take away theproperty. Others they want to chasethe children away, you find thosechildren living in the street.’Story 2‘Just from a family point of view theyare sitting with a dilemma where themother is terminally ill and preparingthe children will normally happenafter the death of the mother. Sobefore the mother dies we test theprocess to find out what it would belike, because it’s very painful on thatday. We try to prepare the child inthe context of the mother not beingaround any more, like we may sendthe child to the father beforehand,so that the child can gradually get usedto the father and the father’s home.’178 Chapter 12 | Dying and The Law

INTRODUCTIONEstate Planning – putting proper plansin placeOften after the death of a family member,people are confronted with overwhelmingand confusing administrative challenges.One of the most simple, yet commonchallenges facing the family of a deceasedperson is the lack of correct documentationsuch as a missing:• identity document• birth certificate• marriage certificate• Insurance policyNot having the correct documentationadds to the administrative burden of thedeceased’s family because they will needto sort out the missing documentationafter the person has died.If proper plans are put in place when weare well and our minds are still clear, thestress of coping with such challenges isgreatly reduced. Simple preparationbefore death – called estate planning –helps with making decisions about:• What documentation is necessary• Where your important documentsare to be kept.• What you would like to have in placefor your loved ones after you are nolonger around to care or provide forthem.• The importance of having a will /ornot. At least providing adequateinstructions about the property thatyou own, your savings accounts andother financial investments such as apension or insurance.‘The old man never had an IDso when he was killed themortuary treated his body withno respect and they refused tokeep his body at the mortuary.We had to run around and findthe chief in his area who wouldallow the old man to be buriedquickly because the mortuarywanted to throw him out.Luckily we found his birthcertificate.’Terms you will find in this chapterAdministration: organising and takingcare of paper work and office tasksAssets: property you own such as yourhouse, your car, your furniture, yourbooks and your money. Your assets canhelp to pay off any outstanding debts.Best interests of the child: If there is aconflict between the child’s interestand the parents’ rights then the child’sinterest comes firstBurial order: an order that is made oncethe death has been registered. Thisallows the person to be buried.Care: The day-to-day care and personalgrowth of a minor child. Making surethe child is fed, clothed, healthy, lovedand nurtured.Customary succession: inheritingaccording to traditional African law.Death notice: a government form thatneeds to be filled in by someone whoknows the personal details of thedeceased and is able to identify thedeceased.Death certificate: this is a governmentform issued by the Department ofHome Affairs. A funeral director orundertaker can help you get one.Debt: money you owe to someone,referred to as liabilities when dealingwith deceased estatesEstate: all the things and the moneyowned by the person who has died –sometimes referred to as a deceasedestateExecutor: the person, appointed by theMaster of the High Court, who windsup and administers the deceased estate,helping with the distribution of theproperty. making sure your property isdivided up according to your wishes asset out in the will. See executor’s duties.Formalities: set rules that must befollowed to make something legalFreedom of testation: people have thefreedom to decide what they want todo with their property after they dieGuardianship: the legal responsibilityof a minor child.Heirs: a person who inheritsHigh Court: the supreme guardian ofall childrenInheritance: property, belongings ormoney left to someone by a deceasedpersonIntend: you mean to do something andyou understand what you are doingIntestate: dying without a willMarital regime: the type of marriagecontract that you have entered intowith your spouse (see inset below)Master of the High Court: governmentofficial with the duty to oversee theproper administration or proper windingup of deceased estates. There is aMaster’s Office in every provinceSpouse: the person to whom thedeceased was married. This will be thehusband or wife, or partner in a samesex marriageTestate: dying with a willTrustee: a person appointed by the HighCourt to take care of a child’s/person’sestateWinding up: closing down a person’sestate, a person’s propertyChapter 12 | Dying and The Law179

INTRODUCTIONNotesDying with or without a willAfter someone has died, there are twoways in which the law provides for thedistribution of the deceased person’sproperty.One is when a person prepares a willbefore his/her death.This is called testate succession.The other is when a person dies withouta will and we call this intestate succession.Leaving a will is very important if :• you have your own property• if you have young childrenWhen preparing a willWhen preparing your will it is importantthat you write out your wishes with greatclarity and care. Remember you areputting your wishes down in writing sothat any person reading the will canunderstand it after you are gone.If certain legal requirements are not met,then the Master of the High Court couldreject your will and he or she will use thelaw of intestate succession (explainedlater) to distribute your possessions. Thisis why you have to be very careful aboutmaking a will.If you write your will properly there willbe no arguments after your death andmembers of your family will not be forcedto go to court to sort out any problemsas a result of an unclear will.Freedom to give your propertyto anyone is not absoluteThe law recognises that people have aright to give their property to anyonethey choose and this right is called theperson’s `freedom of testation’. Theserights of `testation’ are not absolute, asthere are certain legal provisions thatneed to be followed and applied whenminor children or spouses are involved.This is because, in South African law, aminor child and a surviving spouse areable to claim maintenance from adeceased estate – that is if there is anymoney in the deceased estate after thebills have been paid.If you die without a will, the executor orthe Master of the High Court will not beable to follow your wishes even if youspoke to your loved ones about yourproperty before you passed away.This means that if your wishes are notwritten down and certain set formalitieshave not been followed, legal rules willapply and your property will bedistributed in terms of the IntestateSuccession Act of 1987, as amended.In this next section we are going to discusswhat the law says and what preparationsshould be in place when faced with death.We will also look at some problemsituations and some new changes to thelaw, particularly the law dealing withcustomary rights and marriage.Topicfor discussionSolve the problem:Read the story and break intogroups of 3-5.In your groups discuss:a) Whether Mrs. Laher has anylegal rightsb) What steps can Mrs Laherfollow in order to solve herproblem?Case StudyMrs. Laher, a car guard, tried for many years to secure maintenance from herhusband for herself and her three children. Eventually the court ordered thathis furniture be attached and the rental income from one of his properties bepaid to Mrs. Laher to recoup the maintenance monies he owed. Before this ordercould be enforced, Mrs. Laher’s husband died. After his death, his family cameand took all the furniture out of the house and took over the property so thatMrs. Laher could not access it.180 Chapter 12 | Dying and The Law

DYING WITH A WILL - TESTATE SUCCESSIONAs already mentioned, every person whoowns property or has minor childrenshould have a will as this will protecttheir loved ones from the additionalworry of dealing with legal oradministrative problems at a time whenthey are grieving. A will is a legallyrecognized document that formally setsout a person’s wishes. This means thatin a will you can put down:• who you want to leave yourproperty/money/belongings to,• the amount you wish to leave to eachperson,• specific instructions about your burialor cremation,• who you will entrust with theadministration of your estate after yourdeath.People need a will that has been properlydrafted and executed and it must bedrawn up before you die. This meansthat it must be in writing and must followthe formalities that have been set out inthe Wills Act 7 of 1953, as amended.Having a will in place can go a long waytoward reducing stress and giving aperson peace of mind because there isthis understanding that his/her wisheswill be followed after his/her death.Although making a will is an importantlegal act it can be a relatively easyexercise.If your wishes are simple anduncomplicated you DO NOT haveto ask an attorney or a bank to helpin writing up your will.Everyone over the age of 16 years canprepare a will, as long as they know andunderstand what they are doing. Youalso need to be mentally capable ofunderstanding what you are doing at thetime you draw up your will. This meansthat you are clear headed and canremember who you are, what you ownand to whom you want to leave yourbelongings after your death. You alsoneed to make sure that you sign yourwill in front of two witnesses who areover the age of 14 years and who cansign the will in front of you as well. (seeformalities on page 171 of this chapter).Making a proper will needs carefulplanning and writing. A will does nothave to be typed and it can be in anylanguage as long as it can read clearly bysomeone else. In a will you can leaveanyone your property/belongings. Firstlyyou need to make sure that the propertyis yours to give away. You also need tothink about any debts you may have.If you have not paid off your debts, themoney you owe will be taken out of theestate first and then the remaining amount– if any – will be paid to your heirs.You need to ask yourself a number ofimportant questions before sitting downto write your will:1. Whether you have minor children(children under the age of 18 years)or dependents. If so, what plans doyou have for their care and futurewellbeing?2. Who you would trust to take care ofthe administration of your estate afteryour death? This person will make sureyour property is divided according toyour wishes after your death and iscalled an executor or administrator.Their duties will be discussed a bit lateron in this section.Whether you are married, and if so; yourmarital regime: are you married incommunity of property; are you marriedin terms of an ante-nuptial contract, acivil union or do you have a customarylaw marriage? (see box – What do wemean by marital regime?).What do we mean bymarital regime?In South African civil law thereare three matrimonial propertysystems/regimes. They are:• Marriage in community ofproperty where both partiesshare a joint estate. This is thesystem that automaticallyapplies if you do not draw upan ante-nuptial contract.• Marriage out of communityof property where both partieshave separate estates. Youhave to draw up an ante-nuptialcontract before the marriage.• Marriage out of communityof property with accrual -youhave to draw up an antenuptialcontract before themarriage. The difference is thatboth parties have separateestates, but to stop anyunfairness they share in theaccrual at the end of themarriage. Accrual is theaccumulated profits they maymake during their marriage.Note:1) Customary law marriages arerecognised in our law. TheRecognition of CustomaryMarriages Act of 1998 givesfull legal recognition tocustomary marriages as longas they are registered atHome Affairs. (A customarylaw marriage is not `the same’as a civil law marriage)2) Same-Sex Unions are nowalso recognised in our law.The Civil Unions Act No 17of 2006 states that a civilunion is, `the voluntary unionof two persons who are both18 years of age or older, whichis solemnised and registeredby way of either a marriage ora civil partnership, in accordancewith the procedures prescribedin this Act, to the exclusion,while it lasts, of all others’.Chapter 12 | Dying and The Law181

DYING WITH A WILL - TESTATE SUCCESSIONTopicfor discussionDo I need help to write my will?Guidance for discussionThink about your own situationwhen responding to thisquestion:• Do you have children, aspouse, property that is inyour name?• Is your personal situationquite complicated or verysimple?• Your responses can determinewhether you will need helpor not in writing up a will.For furtherinformationLegal Aid Adviceline0860 534 258 / 0800 110 110(Toll free from a landline)Refer to the Resources sectionat the end of this book, for a listof contact details for legalservices.Seeking assistance to draw up a willWills may be very simple or may be verydetailed. The detail depends largely onthe number of assets that you own.In what circumstances do I need help todraw up my will?• If you have a number of assets• You are worried about tax implications• You plan to set up a trust to take careof your childrenthen you really do need to seek theassistance of an expert, usually an attorney.Who can help me draw up my will?1) Attorneys2) Legal Aid3) BanksIf you need help or advice about drawingup your will, there are several placeswhere you can go to seek expert advice.Some experts may charge a fee to drawup your will, some will not.1) AttorneysIf it’s a simple will, an attorney shouldnot charge you very much and you canand should discuss beforehand theamount they will charge.2) Legal AidThere are various services available forpeople who cannot afford to pay forlawyers. Unfortunately not all theseservices will help with drawing up a willor winding up a deceased estate. You willneed to check with them first. These are:• Legal Aid SA and Justice Centres• Law clinics at various universities inSouth Africa• Legal Resources Centre• Community law centres and/orparalegal advice offices• Black Sash3) BanksA bank can help you draw up your willbut the bank may charge you for thisservice. A bank may charge less to helpdraw up your will, if you nominate thebank as your Executor or if you requestthat the bank assist your Executor.If the bank acts as your Executor theymay charge an annual fee to keep a copyof the will for safe keeping and youshould keep the duplicate copy in a safeplace of your choice.If your will is simpleYou can:• Draw it up yourself• Ask one of your children or friendswho you trust to help you.You are not obliged to leave themsomething in your will just because theyhelped you in the writing of the will.An important note: Always becareful of people who offer to helpwrite up your will for free and thensuggest you leave them somethingin your will.Changing your willYou may change your own will at anytime before you die.How can I change my will?You can either:• cross something out and addsomething into your will• or make a new will.If you cross something out and addsomething into your will then you andtwo witnesses must sign as close to thechange as possible.If you make a new will, in other words,you replace your old will with a new one,then the proper way of doing this is tostate, in the new will, that all previouswills are cancelled or revoked.A testator (the person whose will it is)can even destroy his/her will any timebefore his/her death.The person changing, destroying ormaking a new will must:• want to make the change• not be persuaded or forced to do so• he/she should also be mentally alertat the time the changes are made.182 Chapter 12 | Dying and The Law

DYING WITH A WILL - TESTATE SUCCESSIONFormalities of a valid willA will must comply with the followingformalities:• The person writing the will (testator)must be 16 years or above.• The will must be in writing.• The will must be signed by the testatorand if there is more than one pagethe testator must sign every page.• The testator must sign the will in frontof two witnesses.• The two witnesses must also be ofsound mind and over the age of 14years.• The witnesses must sign the will in frontof the testator and they should notbe due to inherit anything from this will.Drawing up a will• Give your full name with your identity number and youraddress.• Say what your marital status is,and if married, state your maritalregime. Give the name andidentity number of your spouse.Are you single,married, divorcedor widowed?• Write down that this is your last will and testament andthat you revoke (cancel) all other wills that you havemade before this one.• Name someone you trust to take on the administrationof your will (carrying out your wishes) – an executor. Youshould ask the person first before naming them as yourexecutor in the will. If you do not select someone, or ifthe Master thinks that the person you have chosen willnot be able to do the administration properly, then theMaster may select someone for you.• You must also say that the executor does not have topay any money when she/he accepts the position ofexecutor. This is called an `exemption from payingsecurity’.• Make it clear how you want your property to be dealtwith. Write down who will inherit each of yourpossessions. Give details such as their full names,addresses and whether they are male or female, marriedor unmarried.• Always think of your minor children. If you have minorchildren, you need to think of someone you trust whocan act as their guardian. This person must be able andwilling to be their guardian. If it is possible, an expertsuch as a bank manager, an accountant or a lawyer shouldbe consulted when there are minor children.• When you are finished,write the date and sign thewill, in full, in front of thetwo witnesses – you mustsign the will as closely aspossible to the last line ofwriting in the will.This is to stop anyonefrom adding anythingonto your will.WARNINGA person cannot inheritif s/he signs as awitness. This is to stoppeople fromcommitting fraud orthe court thinking thatthey may havecommitted a fraud.• Both witnesses must sign, in full, after your signature onthe last page.Unless your will includes an ‘exemption from payingsecurity’, the Master will normally require the Executorto submit a bond of security. This is because the Executoris responsible for your assets. If you appoint yourparent, your child or your spouse as your Executor,they do not have to submit a bond of security.Remember that despite your wishes in your will, thedecision to request a bond of security is at the Master’sdiscretion.Chapter 12 | Dying and The Law183

DYING WITH A WILL - TESTATE SUCCESSIONNotesExample of a simple willLAST WILL AND TESTAMENT OF Kase Mdu (ID number)of 25 Malibongwe Drive, Randburg, Johannesburg.1. I hereby cancel all wills made by me before this time,2. I appoint as executor of my estate my sister, Suni Sunn, of 10 Moss Street,Burgersfort. I do not want my executor to pay any security.3. I leave R5 000.00 to my friend, Sbu Khosa, of 9 First Avenue, Malvern,Johannesburg.4. I leave my car to my daughter, Akhona Mnisi, of 201 Green Street, Acornhoek,Limpopo Province.5 I leave the rest of my property to my wife, Agnes Mdu, with whom I havea customary law marriage which is registered in terms of section 4(1) of Act120 of 1998, and if she does not survive me, I leave the rest of my estateto my brother, Gideon Mdu,Topicfor discussionThese may be consideredcontroversial1) Does organ donation savelives?2) There is a shortage of landfor burials. Wouldn’t it bebetter if we were all cremated?3) What do you think of havinga video will?6. Should my wife die before me, I would like to appoint my brother, GideonMdu, as the guardian of my minor son, Mpho Mdu.7. I would like that, on my death, any of my organs to be used for purposesof transplant to help another living person. I direct that my executor mayhave the authority to decide in this matter.8. I would like to be cremated.Signed by Kase Mdu on this day of 29th October 2006 as the testator of thiswill in the presence of two witnesses.Testator._____________________Witness 1. _____________________Witness 2. _____________________Note: If the Testator (personwriting the will) thinks theirExecutor may need help toadminister the will, then thisclause should be included in thewill: I direct that my Executor shallhave the power to appoint aprofessional to assist him/her.Note: as long as the heirs are clearly identified, a will remains valid.Even if the date, identity numbers or addresses are left out the will remains valid.The problem is that the Master of the High Court will then have to ask for theaddresses of the heirs and if the date is missing it may be difficult to find out whenthe will was written.184 Chapter 12 | Dying and The Law

DYING WITHOUT A WILL: INTESTATE SUCCESSIONWhen a person dies without a will, the law of intestate succession provides a number of steps that must be followed by theMaster’s Office in order to distribute the deceased person’s property and possessions. The Intestate Succession Act of 1987,can be a very difficult Act to follow if it is not clearly explained.A short excerpt of the IntestateSuccession Act is given below:1.(1) If after the commencement of thisAct a person (hereinafter referredto as the`deceased’) dies intestate,either wholly or in part, and-(a) is survived by a spouse but not bya descendant such spouse shallinherit the intestate estate:(b) is survived by a descendant, butnot by a spouse, such descendantshall inherit the intestate estate;(c) is survived by a spouse as well as adescendant-(i) such spouse shall inherit a child’sshare of the intestate estate or somuch of the intestate estate as doesnot exceed in value the amountfixed ….by the Minister of Justice…whichever is the greater; and(ii) such descendant shall inherit theresidue (if any) of the intestateestate;(d) is not survived by a spouse ordescendant, but is survived-(i) by both parents, his parents shallinherit the intestate estate in equalshares; or(ii) by one of his parents, his survivingparent shall inherit one half of theintestate estate and thedescendants of the deceased parentthe other half, and if there are nosuch descendants… the survivingparent shall inherit the intestateestate; or(e) is not survived by a spouse ordescendant or parent, but issurvived –(i) by –(aa) descendants of his deceasedmother who are related to thedeceased through her only, …bydescendants of his deceased fatherwho are related to the deceased byhim only; or(bb) descendants of his deceasedparents who are related …throughboth such parents; or(cc) any of the descendants mentionedin…(aa) as well as …(bb), the intestateestate shall be divided into twoequal shares...And so on… .The surviving spouse will receivethe same share of the property asthe children or R125 000.00,whichever is the most, and thechildren will share the rest.Note: This means that if you haveno will your spouse(wife/husband/partner) will get allthe money if you have the amountof R125 000 or less.What happens if you die without a willThe Intestate Succession Act explainedA simple explanation of the IntestateSuccession Act is as follows:• If you are married but you have nochildren then your surviving spousewill inherit everything.• If you have children but no spousethen your children will inherit equally.• If you have a spouse and childrenthen the children and your spousewill inherit equally depending on howmuch money you have left afterfollowing a formula set down in law:Remember that children means allchildren, including illegitimatechildren – children born outside alegal marriage.• If you have no spouse or children theestate will be equally dividedbetween your parents.• If you have no spouse, nochildren and no parents yourestate will be equally dividedbetween your brothers andsisters.• If you have no spouse, nochildren and no brothers andsisters then your estate will beequally divided between theblood relatives who are closestto you.• If you have no spouse, nochildren, no brothers, no sistersand no relatives your estate willgo to the state.Chapter 12 | Dying and The Law185

DYING WITHOUT A WILL: INTESTATE SUCCESSIONAnswers to Scenario 1Follow the procedure step bystep:i) Mr Sibanda has left a wifeand three children. In termsof the law the survivingspouse, Mary, will either getan equal share of theproperty, as a descendant, orR125 000, whichever is thegreatest amount.ii) If you divide 260 000 by 4(wife plus 3 children) = 65000. This is an amount that isless than R125 000. Check thelaw. The wife must get thegreater amount.iii) The wife Mary will thereforeget R125 000. The threechildren will share theremaining amount in equalsharesiv) 260 000 – 125 000 = 135 000,which is the remainingamount. This amount mustnow be divided by 3 whichequals R45 000.v) Each child will receive R45 000.Answers to Scenario 2Follow the procedure step by step:i) Kevin has no spouse and nochildren but has one survivingparent and descendants of apredeceased parent.ii) The surviving parent inheritshalf of the estate. The estateis divided in half: R700 000divided by 2= R350 000. Kevin’smother inherits R350 000.iii) The remaining R350 000 willbe divided amongst thedescendants of thepredeceased parent. Thismeans that Connie andBrandon will share R350 000equally and receive R175 000each.iv) Martin is related to Kevinthrough his mother Mary andwill inherit nothing.ExerciseRead the following storiesScenario 1Mr Sibanda dies without drawing up a will. He left:• his wife, Mary• three children, Nkhosi, who is 5 years old, Bernard, who is 10 years oldand Thandi, who is 19 years old.After all his debts have been paid off, his estate adds up to R260 000.QuestionHow much will Mary, Nkhosi, Bernard and Thandi inherit?Note: In this example the marital regime has already been sorted out, theexercise is only looking at the intestate estate.Scenario 2Kevin forgets to make a will. After his death the Master has to devolve hisdeceased estate.Kevin never married and he had no children. He did have a brother and asister, Connie and Brandon, and a half brother Martin, who was his mother’sson from a previous marriage. Although his father has passed away, hismother is still alive. Kevin leaves an estate of R700 000.QuestionWho will inherit?After reading the above scenariosa) Draw a diagram showing the lines of inheritance for each senario.b) Give reasons for the answers you gave to Scenario 1 and Scenario 2 i.e. Whodo you think will inherit and how much will they inherit?Notes186 Chapter 12 | Dying and The Law

CUSTOMARY LAW OF INHERITANCEIntestate succession in terms of AfricanCustomary Law is based on the principleof primogeniture. What primogenituremeans is that:Only a male, who is related to thedeceased through the male-line, isentitled to inherit.An example of this is where the eldestson of the senior wife or his descendant,if he is dead, usually takes over as thehead of the house when the head of thehouse dies. In this way, the formalcustomary law of succession discriminatesagainst women and children by excludingthem from their rightful inheritance.Often what happened was that, after thedeath of the adult male, the widow andthe children were thrown out of thefamily home and the widow had verylittle legal protection.In response to the unfairness that wasthe result of certain discriminatorysituations, changes have recently takenplace that directly impact on thecustomary law of inheritance and therights of women and children.In the Constitutional Court decision ofBhe and Others v Magistrate Khayelitshaand Others 2005 (1) SA 580, a ruling wasmade that certain laws, dealing with theadministration of black estates, wereunconstitutional because theydiscriminate against women. This decisionhas had a far reaching impact on the futureadministration of black estates, and newlaws have been developed and debated.In South Africa a new Act has beenrecently passed and is called the Reformof Customary Law of Succession andRegulation of Related Matters Act 2009.NotesA will written by the adult malebefore he dies protects his wife andchildren from such a practice. Seepage 183 and the example of aSimple Will on page 184 for guidanceon drawing up a will.Case StudyBhe and Others v MagistrateKhayelitsha and Others 2005The Bhe case concerned two younggirls, aged 9 and 2. The customary ruleof primogenture that prevented themfrom inheriting their father’s property,because of their female gender, waschallenged on their behalf.The girls had been living in Khayelitshawith their parents until their father’sdeath. Even though the parents hadbeen together for twelve years, theparents were not legally married. Aftertheir father had died, the familycontinued to live on the property untiltheir grandfather told them to leave.The grandfather claimed that underAfrican customary law, the houseshould now be the property of theeldest male relative of the father’schildren. This meant that, in terms ofthe rule of primogeniture, the familyhouse would become his property andhe then planned to sell it.The court decided in favour of the girlsand against the grandfather since thiswas a clear case of African femalesbeing discriminated against. The twogirls were declared to be the sole heirsof their father’s estate and were giventhe right to inherit equally.Topicfor discussionWhat do you think of theoutcome of this case?The Court decided that certainlaws, dealing with theadministration of black estates,were unconstitutional becausethey discriminate againstwomen. This decision has hada far reaching impact on thefuture administration of blackestates, and new laws havebeen developed and debated.In South Africa a new Act hasbeen recently passed and iscalled the Reform ofCustomary Law of Successionand Regulation of RelatedMatters Act 2009.Chapter 12 | Dying and The Law187

TAKING CARE OF THE CHILDREN‘People want to grab childrenwhen there’s a funeral - becausethere’s money attached to achild - and there’s no-one tomonitor whether the childrengo to school or not becausethe social workers does not goout there. NGOs do their bestto monitor, but really theycannot help much. Its verycomplicated that’s when youneed the legal process to keepan eye on things and make surethe children are being takencare of.’NotesThe Guardian’s Fund fallsunder the Master of the HighCourt and the fund is toprotect the the financial andproperty interests of minorchildren.If you decide to draw up a will you needto provide for a legal guardian or evenfind a trustee for your minor child. TheChildren’s Act 2005 says a person canbecome a child’s guardian if elected in awill that was written by the parent/s orprimary caregiver, as long as that selectedperson is a ‘fit and proper person’.Remember that before younominate a person in your will youshould consult with your familyand also with the person youwould like to nominate.Explain clearly what you want for yourchild or children, always thinking aboutwhat would be in the best interests ofthe child. Keep your child’s birthcertificates, medical records, schoolreports with your will or with all yourother documents such as identitydocuments (IDs), work information andinsurance information.Do not leave your money or propertydirectly to minor children, unless therereally is no-one you trust or no-one whois prepared to help with the children. Ifyou put your property directly in thehands of your minor children and do notname a guardian to take care of theiraffairs, then the state will administer theirproperty through the Guardian’s Fund.This means that each time the childrenneed money, the person who is caringfor them, will have to write a letter tothe Guardian’s Fund motivating why theyneed the money. This caregiver will alsohave to show proof of all the expenses.It can be a very time consuming andfrustrating process.If you do have some money and youwould like to leave it to your minorchildren, then plan what you would liketo do in advance. Go to a lawyer or abank and ask them about creating a trustfor your minor children.A trust can provide the following for yourchildren (if there is enough money):• Day-to-day care of the children• Education needsMaintenance Claims of Minor ChildrenBoth parents are responsible for themaintenance of their minor children. If aparent dies this responsibility formaintenance continues and is then sharedbetween the surviving parent and theestate of the parent who has died. Whenthis happens that child’s guardian, as thechild’s representative, will claimmaintenance from the executor of thedeceased estate. The claim usually takesthe form of an agreement between theguardian and the executor and must beapproved by the Master and/or the court.There are many ways to claim themaintenance from the deceased estate.Payment can be made in the form of asingle lump sum (which is usually paidinto the guardian’s fund where it will beadministered for the child’s benefit), orby forming a trust if a court orderprovides for it. As soon as the child isable to maintain him or herself orbecomes a major, usually when reachingmajority (18 years) the duty to paymaintenance falls away.188 Chapter 12 | Dying and The Law

THE LEGAL PROCESS AFTER SOMEONE DIESWinding up the deceased estateThe administration of a deceased estateis a step by step process that needs tobe followed in an organised manner asit is not an easy process. If each step iscarefully followed, the estate can bewound up fairly quickly.The estate must be wound up (closeddown) by the Master’s Office of the HighCourt in the province where thedeceased lived. There are 14 Master’soffices in South Africa and there are alsoservice points at all magistrates’ courtsthroughout the country. These servicepoints are responsible for theadministration of small simple estates.The first steps that need to be taken byfamily or friends after a person has diedare as follows:1. After reporting the death to HomeAffairs you will receive theappropriate documentation toproceed with the burial or cremationof the deceased. Once theburial/cremation has taken place youwill then need to start sorting outthe property of the deceased person.2. If the person who has died has leftsome property behind, you areexpected to report his/her death tothe Master’s Office. This needs to bedone within 14 days after the personhas died. You need to send a deathnotice to the Master’s office. A familymember or friend can do this. If thedeath did not take place at home,then the official from the buildingwhere the death occurred can do this.3. A death certificate needs to be issuedif the person who signs the death noticewas not present at the death or didnot identify the body after the death.4. The Master’s Office will give thefamily forms to fill in, these arenecessary for winding up the estateof the deceased. The Master’s Officewill also require certain documentsfrom the family such as thedeceased’s identity document, amarriage certificate (if married) anda will, if there is one.5. The Master will then decide whetheran executor or administrator will beneeded to assist in winding up thedeceased estate.6. If the estate is a small estate and isless than R50 000, a family memberor some other representative canwind up the estate on their own.7. If the estate is worth more than R50000 but under R125 000, the Masterwill decide whether an executorshould be appointed to help withwinding up the estate.8. If the estate is more than R125 000the Masters Office usually says thatan executor must wind up the estate.9. If an executor has not been appointed,the Master will appoint one.When is an Executor or Administratorappointed?If the estate is not complicated or is asmall estate falling under R125 000 theappointment of an executor is not alwaysnecessary. This is when an administratorcan be appointed by the Master of theHigh Court and we call this a section 18(3) appointment (informal process). TheMaster of the High Court will issue‘letters of authority’, giving this personthe power to administer the deceasedestate. This means the administrator actsas the Master’s representative and willadminister the deceased estate bycollecting together all the assets anddebts for the deceased person. Windingup a small estate is very simple and theMaster leaves this entirely up to theadministrator to complete. The Masteris still able to ask for proof of how theestate was sorted out. Once the Masteris satisfied with the administration ofthe estate, the Master will close theaccount.When a person dies, theproperty of the deceasedperson does not goimmediately to the heirs. Itmust first go to the executor oradministrator who will then payoff the debts and then dividethe rest of the inheritancebetween the heirs.NotesA death notice and a deathcertificate must not beconfused with one another,they are different documents.Chapter 12 | Dying and The Law189

THE LEGAL PROCESS AFTER SOMEONE DIESAdministrator's dutiesFor estates that too small for anexecutor to be appointed anadministrator is appointedinstead. The Master will issuesection 18(3), ‘letters of authority’,which will give this person theauthority to administer the estate– meaning that he/she cancollect together all the moneyowed to the estate, pay of thedebts, sort out the banking andthen finally pay off the heirs.The procedure is very simple,but if the Master has anyconcerns about the process he/she can ask the administrator toshow proof of how the estatewas finally sorted out. Thismeans that the administratorwill have to give the Masterreceipts, invoices, statementsand affidavits showing howhe/she administered thedeceased estate. Once theadministrator has supplied theMaster with all the necessaryproof, and the Master is satisfiedwith the administration, theaccount will be closed.The executor’s duties – a step by step processThe nominated executor needs to meet with the family to collect relevantdocuments and information such as the deceased’s:• identity documents,• banking details• property details – including title deeds• any policies and• any debts that the deceased may have had.These details are important for the family members to gather together as theywill help in sorting out the inventory that the Masters Office will need.The executor then reports the estate to the Master with the relevant documentssuch as:• the death notice,• death certificate (if needed) and,• the original will, if there is one.• The inventory,• A form stating acceptance of trust as the executor.The Master will then appoint the executor by sending him/her ‘letters of executorship’.• The executor must then arrange for a valuation of the estate.• The executor puts a notice in the paper and asks all the creditors to comeforward. The creditors have 30 days to come forward.• The executor must open a bank account for the deceased estate and depositall the money from the estate into this account.If an executor needs help, hecan ask for assistance fromsomeone who knows. This couldbe a lawyer, an accountant orthe manager of a bankinginstitution. He can even hire alawyer to assist with the aboveduties and responsibilities. Thisperson will usually charge a feeor a percentage of the value ofthe estateFor furtherinformationFor information regarding theforms that the Master's Officewill need, please refer to theresources section at the back ofthe book.190 Chapter 12 | Dying and The LawAfter the executor has gathered together all the information regarding the propertyin the deceased estate, the executor will be able to decide if the deceased person’sassets are more than his/her debts and that s/he is therefore solvent.Finally the executor needs to start planning to liquidate the deceased estate:• The executor contacts the beneficiaries and explains the procedure to themand asks for their opinion on certain matters about the estate.• The debts are then subtracted from the total amount of the assets. All of thedebts are then paid.• There are also death duties on estates – these are death taxes. If the estateis small there are no costs or they are minimal.• The executor sends the final account to the Master of the High Court. Theaccount lies at the Master’s Office to allow people to inspect it.If there are no objections to the account and the Master is satisfied, the executorcan then pay the heirs their inheritance.• The executor must then send the Master copies of receipts from the heirsshowing that they have received their inheritance.• The executor is then released from his/her duties by the Master.

WHEN SOMEONE DIES AT HOMEWhen someone dies at home, thecaregiver or family members need to becareful about taking care of themselvesat this time – both emotionally andphysically. When someone dies, andthere is no doctor or nurse there to help,certain things need to be done orsomeone trustworthy asked to assist.• Close the person’s eyes and contactsomeone who can help you – it willbe better if that person is your homebasedcarer, a nurse or a doctor.• If there is going to be a delay until adoctor, funeral director or SAPS canget to you, then the body may needcleaning.• Cover any wounds or sores, takingcare to cover your hands with glovesor plastic bags.• Put a cloth between the legs and upunder the buttocks.• Put clean clothes on the deceasedperson, if you are able.• Remove all pillows.• Straighten the body and limbs (armsand legs).If a medical practitioner arrives he/sheneeds to give you the medical certificateof death. This will explain the cause ofdeath. This is not the death certificate.The medical practitioner will hand thedocuments to next-of-kin or to thefuneral undertaker. If a medicalpractitioner is not available then youshould contact a funeral company assoon as possible as you will needsomeone to help you remove the bodyand prepare it for burial. In rural areasthe traditional leader or SAPS can assistin dealing with the removal of a deceasedperson.The funeral director may need thefollowing documents from you:• the deceased’s ID document or• an official document that will showthe deceased’s date and place ofbirth and place of death• details of any hazardous work thatthe deceased was employed to do –if relevant• details of any funeral policies, burialsocieties or pre-paid plans• the medical certificate issued by themedical practitioner.NotesChapter 12 | Dying and The Law191

FUNERALS AND PLANNINGNote: Where there is no HomeAffairs office in the area thenthe nearest police station willbe appropriate.NotesBe careful: Having an expensivefuneral is not always advisable.Families need to show their loveand respect for the departedbut sometimes people takeadvantage of this wish and itmay place an unnecessaryburden on the relatives of thedeceased.The death must be reported to theRegistrar of Births and Deaths (HomeAffairs) as soon as possible. If the deathtakes place in the city, the notice of deathmust be handed to the registrar within24 hours. If it takes place in the rural areas,it should be handed in within 14 days.After registration of the death the familywill receive a death certificate and aburial order. This allows them to proceedwith the burial of their family member.After the necessary documents listedabove have been handed in and thefuneral director has been instructed asto the family’s wishes, he/she will thenassist with a number of decisions to bemade.When someone dies,the family has tomake many decisions. Some of these arelisted below:• They will need to decide whetherthey want to arrange a burial or acremation, according to their beliefs.If there is a will, sometimes thedeceased will give specific instructionsabout this. For those of the Muslimor Jewish faith, there will be a senseof urgency to arrange the burial.Then:• Christians will need to considerwhere the funeral service should beheld - in the local church, at acrematorium chapel, even in thehome or at the graveside.• Muslims will need to gather themourners for the funeral prayers,traditionally said outside in acourtyard or outside the mosque,before the men only proceed to thegraveside. After the burial there willbe three days of mourning.• Jews will want to accompany thebody to the graveside in a processioncalled the “levayah” and afterwardsorganise the “shivah” or seven daysof mourning.• African Traditional religions will needto arrange the burial for a time whenthe family and the community cangather for several days of mourningat the ancestral home of thedeceased, if at all possible.• Who will officiate (run the service orprayers)? This is usually a churchminister, the Rabbi or the Imam.Family and friends may also want tosay something at the funeral.BurialAfter the registration of death and theissuing of a burial notice, the burial cantake place at an approved burial site asit is illegal to bury people on your ownproperty or in an open plot of land. Burialscost money so you need to find outabout the costs and select the burial thatyou can afford. Do not spend money thatyou do not have.Pauper’s Funeral (Burial)Some people may be unable to afford topay for the burial of a loved one. Manypeople belong to burial societies, or theyhave an agreement with a funeral parlour.If there is no money for the burial, thefamily may apply to the municipality(under cemetries) or the department ofhealth for a pauper’s funeral. This is avery simple funeral with a simple coffinmade of pine and no tombstone is puton the grave. You may also find that incertain provinces the body may becremated.192 Chapter 12 | Dying and The Law

FINAL CHECKIt is very difficult to be a carefulconsumer when you are mourning theloss of a loved one, but there are somematters that people need to be carefulof:• being persuaded to spend all yourmoney on an expensive coffin or anexpensive tombstone• spending money on an expensiveflower arrangement, or even severalflower arrangements.• spending too much money onrefreshments• being persuaded, by any of the serviceproviders, shop owners or funeralparlours, to sign a blank form or aform where the numbers have beenpenciled in• not checking up on the hidden costsinvolved – hidden costs like storageof the body, transport and so on.What you should do if you areuncertain is• Pay for what you can afford – respector love for the deceased can beshown in many other ways. Thewords you say at the funeral, the wayin which the service is held are allways of showing respect and lovefor the person who has died.• Make careful enquiries about all thecosts involved. Do not let peopleintimidate or confuse you.• Do not be embarrassed to ask if youare not sure what you are signing.• Contact the nearest legal aid office,advice office or Pro Bono.Org officeif you have any problems.BIBLIOGRAPHYColgan, D. (et al) Children’s Act Explained, Booklets 1 to 3, UNICEF/Department of Social Development 2009.http://www.unicef.org/southafrica/SAF_resources_childact1.pdfColgan, D. Succession Planning Booklet and Facilitation Guide. UNICEF/Department of Social Development 2009. Updated 2011.Jamneck J (ed) and Rautenbach C (ed). The Law of Succession in South Africa, Oxford Uni Press 2009The Master’s Office. http://www.justice.gov.za/master/about.htmRELEVANT LEGISLATIONIntestate Succession Act of 1987Law of Succession Amendment Act 1997The Children's Act 2005Wills Act 1953, as amendedChapter 12 | Dying and The Law193

NOTESNotes194 Chapter 12 | Dying and The Law