Conflicting Wills in South Africa: Legal Consequences and Precautions

A client asked: What happens if I don't revoke my first South African will where I leave everything to one person and then make a second will years later, leaving everything to a second person? What are the legal consequences?

Introduction

If you have a will and want to make a new one because of changed circumstances (for example you have since gotten married and have children) it is essential that your new will revokes the earlier will or wills.  The revocation clause would typically read: I revoke all previous wills made by me.

When a person fails to revoke their first will while making a second will that contradicts the first, it can cause significant issues during the winding-up process and distribution of assets.

Legal Consequences of Conflicting Wills

The legal consequences of having two conflicting wills can be complex and may include disputes between beneficiaries, uncertainties in estate administration, and potential challenges during the winding-up process. If both wills are considered invalid, the estate might be treated as if the deceased had died without a will, subjecting it to intestacy laws.

Precautions and Expert Guidance

To avoid these legal complexities and ensure that your estate is distributed according to your wishes, it is crucial to seek the counsel of a qualified estate planning attorney. They can assist in creating a clear and legally valid will, revoking any previous wills appropriately, and providing advice on additional estate planning measures, such as trusts, to safeguard your assets and mitigate potential conflicts.

Conclusion

Creating multiple wills with conflicting provisions can have serious legal implications. Seeking professional legal guidance and ensuring that your estate planning documents are up-to-date and consistent can help prevent disputes and ensure that your assets are distributed according to your wishes.

Court awards full parental responsibilities to mother in parental alienation syndrome case

 

TLD v BG [2023] ZAGPJHC 801

Summary

This is a case about an 8-year-old boy whose parents were never married. The court appointed a psychologist to investigate the situation. The psychologist found that the boy was in a difficult family situation, where he lacked empathy under his father's influence and was convinced that his mother and her parents were harmful. This condition is called Parental Alienation Syndrome and can harm a child's mental well-being. The court decided that the mother should have full parental rights for three months, and during this time, the child would get therapy to help him. The court also ruled that the child should have no contact with the father during this period to protect him from further harm.

Therapist's Findings

The expert reported that the child's psychological condition was very worrying. The child was at a greater risk than before, and his mental well-being was deteriorating rapidly. The family environment was chaotic and emotionally unstable, which was harmful to the child's growth. The expert was especially concerned about the child's lack of empathy when influenced by his father's beliefs. This suggested that the child might be losing his ability to understand his mother's feelings and experiences, raising serious concerns about his emotional development.

Court’s ruling

The court found that the child was at significant risk because his parents couldn't cooperate for his well-being. To protect him from further harm caused by parental alienation, the court took decisive action. The court gave the mother full parental responsibilities and rights (she now has the authority to make important decisions about how he is raised and taken care of). Additionally, the court granted her primary custody of the child for three months. To break the cycle of parental alienation and help the child recover, the court ordered that he should have no contact with his father during the three months. This was to shield him from any negative influence or manipulation from his father. During these three months, the child will receive therapy to address the emotional impact of parental alienation and work on building healthy relationships with both parents.

Conclusion

The court's ultimate goal with this ruling was to protect the child’s mental and emotional health. They recognized that intervention was necessary to ensure the best interests of the child. By granting the mother full parental responsibilities and temporarily limiting the father's contact, the court aimed to create a positive environment for his emotional healing and development.