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Inheritance disputes

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An executor can be appointed in terms of a will. One can appoint a person of their choice to administer their affairs and estate after they die. It is advisable and helpful to draft and leave a valid will behind because it will assist in the administration of the deceased estate.

By MIRIAM TOSE MAJOME

There are fewer disputes where a valid will was left. The estate will be managed close to how the deceased person would have wanted it. People generally avoid or defer planning their deceased estates until it is too late and they cannot return to fix the mess left behind.

People spend a great deal of their lives and incomes contributing to funeral policies, but a funeral is only for one day and their shambolic estates and inheritance disputes live long after them.

The most excruciating family disputes are over deceased estates, inheritance and distribution of the estate. Families are invariably usually torn apart over inheritance disputes. People can even be so secretive to the extent of hiding their property and wealth from spouses and close family members as if they will be able to take it with them.

It is not a wise thing to hide property and wealth to the extent that nobody else knows about it. Secret assets remain secret and are buried with their owner. The secret insurance policy or bank account or an unregistered piece of land remains unknown if the documents were stashed away secretly or barricaded with undecipherable PIN codes.

Unclaimed property invariably ends up abandoned and eventually in the wrong hands. At best, it is eventually forfeited by the State or claimed through prescription. We continue looking at ways people can protect their property and minimise fights over their property after they are no longer there to manage their own affairs.

The law

A will, also called a testament, is a legal document by which a person expresses his or her wishes regarding how their property is to be distributed when they die. A will also addresses non-material interests such as giving instructions on fulfilling intentions posthumously.

The Wills Act Chapter 6:06 provides the legal framework for consolidating and amending the law regarding the execution, validity, interpretation and protection of wills and the disposal of property by wills. Anybody above the age of 16 and is not mentally incapacitated can write a will.

Testate succession

Testate succession refers to administration in terms of a will. Intestate succession is administration where there is no will. Wills are not written just to distribute material property and possessions because even people who do not own any property can write wills.

A will is simply a way of expressing one’s wishes and directions for managing one’s personal business posthumously. Parents or guardians of minor children can provide for how their children will be taken care of and even state the particular schools they wish the children to be enrolled in.

Some wills establish Trusts in which they donate their property to be managed by appointed Trustees.

People have absolute freedom over their own property and personal interests and are allowed to distribute it and deal with it as they desire. People are allowed to write wills that exclude family members like parents, children, siblings or other relatives. A will is not invalid simply because family members were left out. However, spouses are different and we shall look at disinheriting spouses next week.

A will can be invalid for the reason that it disinherited a spouse. The will writer is not obliged to give reasons for excluding certain people no matter how closely related they may be. Any person including even unborn children or organisations and companies can be named as beneficiaries in a will. If there is no will a deceased estate is handled in terms of intestate succession. If a person appointed as an executor in a will refuses the appointment the Master will appoint another executor to carry out the terms of the will.

Resolution of disputes

Inevitably, inheritance disputes arise pertaining to the administration of deceased estates and distribution of assets.
A common dispute is on the appointment of the executor themselves because of many competing interests and dynamics within families.

All complaints and disputes pertaining deceased estates should be lodged with the Master. In terms of Section 68F of the Administration of Deceased Estates Act (Chapter 6:01) the Master’s Office is obliged to attempt to resolve disputes and complaints in a timely manner that in its opinion will bring an amicable resolution to the matter.

The Master’s Office has an obligation to hear all sides of the disputes between family members and the beneficiaries and executor. If an estate is subject to customary law, an inheritance plan will be drawn up that shows how the assets and liabilities will be distributed.

All the relevant family members such as spouses, parents and siblings should be consulted about the inheritance plan. People who are aggrieved by any decision made by the Master pertaining to any aspect of appointment of the executor or the administration of a deceased estate are allowed to appeal to the High Court to review the decision.

Legal practitioners are executors and administrators of deceased estates and should be consulted for legal advice pertaining to the administration of deceased estates and assistance with resolution of inheritance disputes.

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