The trials and tribulations of love are an age-old human fascination. It inspires poetry, music, art, books, bold actions, even bolder reactions and more. Yet what many people don’t realise is that matters of the heart have a lasting impact on your life – reaching right into your death.
David Knott of Private Client Trust, the fiduciary services division of Private Client Holdings, explains that when we die, ex-spouses, current spouses, marriage contracts, maintenance agreements and any offspring produced during your life will all have a bearing on how the wishes in your Will are ultimately carried out.
According to Knott, there are a few scenarios that can easily arise which will take precedence over your wishes – meaning that your last instructions contained in your Will and Testament may not be carried out as you intended.
Marriage contracts
“Estate planning always needs to take into consideration the regime under which you are married, for example in community of property, out of community of property, Ante-nuptial Contract with or without accrual and even the laws of the country in which you are married.”
Knott explains that if you are married in community of property, you cannot leave your assets to anyone as you only own a half share of these – the other half is owned by your spouse. “At best you may gift only your half share to the other, but that is likely to cause friction – your spouse is unlikely to be happy sharing the house or car with another.”
Likewise, Knott advises that if you are married in terms of the Matrimonial Property Act with accrual, upon your death a calculation must be made by law as to the growth of both estates and the partner whose estate has grown least has a claim against the other’s estate. If the claim is against the deceased spouse’s estate, this will impact the distribution of assets in terms of the Will.
Knott offers an example of how things can go wrong if you do not factor in the terms of your marriage contract.
“A man dies and in his Will he leaves one quarter of his estate to his wife and the rest in equal shares to his three children from his previous marriages. However, when this man was drafting his Will he forgot that he had entered into an ante-nuptial contract with accrual, which gave rise to a claim against his estate by his surviving current spouse. The result is that his wife inherited five eighths and each of his children inherit one eighth – far from what he had intended in his Will.”
Maintenance – beware the former spouse
“When it comes to maintenance, one cannot disinherit your spouse if the spouse was dependent upon you for support. The Maintenance of Surviving Spouses Act permits the wronged spouse to lodge a claim against the estate for reasonable maintenance needs. Maintenance obligations to former spouses rarely die with you and such obligations can wipe out a considerable portion of the estate,” warns Knott.
Dependants
Minor children and children with special needs must also be catered for before the estate can be distributed to more distant persons. “In many instances no special provision is made for minors as it is assumed that the sole or principle heir will provide for the children from the inherited estate. Be careful of such assumptions and make provisions in your Will for dependent minors.”
There are a myriad of issues relating to the decisions of the heart made throughout your life that can change the way your estate is distributed – despite your clear last wishes.
“The preparation of a valid, workable Will requires a skilled Estate Planning expert who is fully aware of all the problems that may arise should you not take your marriage contract, spouse, ex-spouses, maintenance obligations and children from all relationships into account. In this way you can ensure that your estate passes to the intended heirs without undue problems and strife,” concludes Knott.
For more information contact Elmien Pols or Sarah Love at Private Client Holdings on (021) 671 1220.
