Who is disqualified from inheriting?
There are several circumstances in South African law under which an individual may be disqualified from inheriting. These disqualifications can arise from the nature of the relationship between the deceased and the potential heir, the actions of the potential heir, or statutory prohibitions. Some examples are: –
A person who killed the deceased
A fundamental principle in South African law, mirroring the Roman law principle of “de bloedige hand neemt geen erf” (the bloody hand takes no inheritance), is that a person who unlawfully causes the death of another cannot inherit from the victim. This is codified in the common law and is a principle that courts have upheld in various judgments.
Unworthiness to Inherit
South African law recognizes the concept of “unworthiness to inherit.” Unworthiness refers to a situation where a beneficiary is disqualified from inheriting due to their conduct towards the deceased. This principle is rooted in the concept that a person should not benefit from their own wrongdoing. Some examples of situations where a beneficiary might be disqualified are: –
- Abuse or Neglect leading to Death – A beneficiary who, through abuse or gross neglect, directly causes the death of the testator may be considered unworthy to inherit. This could include situations where the beneficiary’s actions or inactions (e.g., failure to provide necessary care) directly result in the testator’s death.
- Influence or Coercion in the Creation of the Will – A beneficiary who coerces the testator into amending a will or creating a will in their favour, through threats, fraud, or undue influence, can be disqualified from inheriting. The principle here is that the will must represent the genuine intentions of the testator, free from external pressure.
- Obstruction of Justice – If a beneficiary intentionally obstructs the investigation into the death of the testator, for example, by tampering with evidence or providing false testimony, this could lead to their disqualification. The rationale is that such actions are fundamentally at odds with the beneficiary’s potential benefit from the estate.
- Fraudulent Conduct – Engaging in fraudulent conduct towards the testator, such as deceiving them about the nature of documents they are signing (believing it to be something other than a will or an amendment to a will), can result in the beneficiary’s disqualification. Fraud undermines the validity of the testamentary document as a true reflection of the testator’s wishes.
- Preventing Access to Care or Support – If a beneficiary intentionally prevents the testator from receiving necessary medical care, support, or companionship, especially in their final days, this could be grounds for disqualification. This includes actions that isolate the testator, restrict communication with friends and family, or hinder access to health services, with the aim of manipulating the testator’s will or benefiting from their estate.
Divorced Spouse named in Will
If a person passes away within three months following the dissolution of their marriage through divorce or annulment, and they had executed a will prior to the dissolution, the will is to be implemented as though the former spouse had predeceased the dissolution date. This holds unless the will explicitly indicates that the testator intended to benefit the former spouse despite the dissolution of the marriage. Should the testator live beyond this period without amending their will to reflect their post-divorce wishes, the law mandates that the existing will be fully enforced, allowing the ex-spouse to inherit as outlined in the will. [Section 2B of the Wills Act 3 of 1957]
Any person who signs a will as a witness
A person who signs a will as a witness is generally disqualified from inheriting under that will. This is intended to prevent any potential conflict of interest and ensure the will reflects the true intentions of the testator (the person making the will) without undue influence.
Section 4 of the Wills Act states that if any benefit is given to a person who signs the will as a witness, that benefit is null and void unless the will is also signed by two other competent witnesses who are not beneficiaries. This does not invalidate the entire will, just the specific request to the witness. The rationale is to maintain the integrity of the testamentary process and ensure that witnesses to the will have no direct financial interest in upholding its validity.
A court may upon application declare such a witness-beneficiary competent to receive such inheritance if the court is satisfied that the witness-beneficiary did not defraud or unduly influenced the testator in the execution of the will. [Section 4A of the Wills Act]
A person who writes out the will in his/her own handwriting
A beneficiary in a will who wrote out the will or any part thereof in their own handwriting are disqualified from inheriting in terms thereof. This disqualification does however not apply to beneficiaries who typed out and printed a will subsequently signed by the deceased. This was confirmed in the M-S and Another v Le Mottee and Others [2021] ZAGPPHC at par 72. A court may also upon application declare such a witness-beneficiary competent to receive such inheritance if the court is satisfied that the witness-beneficiary did not defraud or unduly influenced the testator in the execution of the will.