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

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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
Page 1 and 2: CHAPTER12Dying and The LawIntroduct
Page 3 and 4: INTRODUCTIONEstate Planning - putti
Page 5 and 6: DYING WITH A WILL - TESTATE SUCCESS
Page 7: DYING WITH A WILL - TESTATE SUCCESS
Page 11 and 12: CUSTOMARY LAW OF INHERITANCEIntesta
Page 13 and 14: THE LEGAL PROCESS AFTER SOMEONE DIE
Page 15 and 16: WHEN SOMEONE DIES AT HOMEWhen someo
Page 17 and 18: FINAL CHECKIt is very difficult to

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