When is someone disqualified from benefiting under a will?

The following persons are disqualified from benefiting under a will:

1.     A person who has unduly influenced the person who wrote the will to give him a benefit under the will.

2.     A person who is unworthy, e.g.

·         A person who unlawfully has caused the death of the testator. This is in accordance with the maxim de bloedige hand er neemt geen erffenis, and clearly the person who murders another cannot take a benefit from the will of his victim.

·         a person who has led another into an immoral life and indirectly caused the latter’s death;

·         a person who has concealed the will of the testator;

·          A person who has attempted to defraud persons of their rightful inheritance by forging a will.

In Makhanya v Minister of Finance the court used the de bloedige hand maxim to extend the rule to cover any proceeds from the deceased’s pension fund from benefiting the person who caused the deceased’s death.

The facts in Danielz NO v De Wet and Another were that De Wet was the sole nominated beneficiary under four life insurance policies on the life of her late husband. In 2000, she hired and paid two men to assault her husband. Unfortunately, they killed him.

In 2006, after the she had been convicted on the criminal charges against her, she claimed under the life insurance policies from the insurer. The applicant, who was the nominee of the insurer (Old Mutual), applied for a declaratory order that De Wet was not entitled to the proceeds of the life insurance policies.

The court agreed and the application for a declaratory order to bar De Wet from claiming the proceeds of the policy was therefore successful.

Muslim and Hindu marriages

Traditional Muslim and Hindu marriages are not recognised by civil law

But if spouses go through a civil marriage ceremony or are married by a priest who is a marriage officer, the law will recognize their marriage. The husband then cannot marry any other woman by civil law or religious law.

The legal consequences of recognizing Muslim and Hindu marriages has been debated in the Law Commission and broader public for a number of years but there is as yet no agreement. In the meantime, rights have been given to spouses in Muslim marriages in bits and pieces in the same way that they have for domestic partnerships.

Court decisions dealing with recognition of Muslim and Hindu marriages

In the case of Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA), a surviving spouse from a Muslim marriage was given the right to claim damages for loss of support from the Fund when her husband died in a motor accident.

In the case of Daniels v Campbell N.O. and Others 2004 (5) SA 331 (CC), the plaintiff was given the right to claim maintenance from the estate of her deceased husband to whom she had been married by Muslim law, in terms of the Maintenance of Surviving Spouses Act.

In the case of Khan v Khan TPD case no: 82705/03 / A 2705/2003 a Muslim woman who was party to a polygamous Muslim marriage was given the right to claim maintenance from her spouse in terms of the Maintenance Act.

ARE YOU BEING ABUSED?

You can apply for a Protection Order which can protect you from further abuse.

How are you being abused?

Physical abuse: pushing, slapping, punching, kicking, burning, biting, stabbing.

Verbal abuse: putting you down, name- calling, yelling, and belittling you.

Sexual abuse: having sex with you against your will, making you do sexual things you don’t want to do.

Controlling your movement: or keeping you locked in the house, isolating you from family and friends, monitoring your phone calls.

Economic abuse: taking away your money, refusing to provide enough money for household expenses, not paying maintenance when he can afford to do so.

Abusing power: always claiming to be right, telling you what to do, and making decisions without consulting you.

Threat with guns or knives: attempting to scare or kill you or your children.

Forced entry: making uninvited calls and visit, refusing to leave when asked.

Stalking you: following you wherever you go, phoning you all the time to check where you are?

Saying the abuse is your fault: pretending that he never hurt you, blaming all his problems on you.

Abusing your children: verbal and physical abuse, sexual abuse, forcing your children to monitor your telephone calls or who visit you, using your children to steal.

Damaging your property: tearing your clothes, burning your belongings, destroying important documents, e.g. ID book/ passport, damaging your furniture.

Who do I contact?

If you need more information or help with a problem of domestic violence you can:

• Talk to a health worker at your local clinic
• Talk to a counselor from your local NGO or welfare office
• Phone the national toll-free Stop Women Abuse hotline – 0800150150

How can the police help me with a problem of domestic violence?

If you report a case of domestic violence to the police:

·         They will tell you about your rights and how to get a protection order

·         They can send a police officer to your home to protect you from further abuse. They can also take away the abuser’s weapons if he is threatening you.

·         They can help you find a shelter and a counseling service.

·         They can also help you get medical care.

·         They must arrest the abuser if he does not obey the protection order.

If a police officer does not help you, you can report him or her to the Station Commissioner. You can also contact your local police Area Commissioner, or the offices of the Independent Complaints Directorate (ICD).

ICD HEAD OFFICE: Maphetang Foolo	012 320-0434
GAUTENG	011 838 2875/6
MPUMALANGA	013 752 4316
NORTHERN PROVINCE	015 295 5561/5
NORTH WEST PROVINCE	018 381 1490
FREE STATE	051 522 9856
KWAZULU/ NATAL	031 305 8370
EASTERN CAPE	043 642 1667
NORTHERN CAPE	053 831 7390
WESTERN CAPE	021 426 0700

Customary marriages: I think I’m married, but am I?

The Recognition of Customary Marriages Act, 120 of 1998, that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa. The following summarises the position:

• The law recognises your customary marriage if:

 you and your spouse are both older than 18;

• You have both agreed to be married under customary law;
• You negotiated and celebrated your marriage following the rules set out in customary law. 

• Even though the husband does not need to pay Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage (the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people);

• If you are married under customary law, you should (but don’t have to) register your marriage with the Department of Home Affairs;

So what proof do you have that you are married under customary law if you haven't registered the marriage at the Department of home affairs? Do you have a written contract in place, formalising the agreement between the parties?

There have been several cases where parties had to go to court to ask for an order declaring that they had been married. For example, in the case of Motsoatsoa v Roro and Others the ‘wife’ asked for an order declaring that a customary marriage existed between her and her late ‘husband’. The court found that, in fact, no customary marriage was entered into between the applicant and the deceased.

In the matter of Southon v Moropane the applicant sought an order that she was married to the respondent. The court agreed and found:

Having considered all of the factual matrix, the testimony of the witnesses, the experts’ testimony, the academic writings, case law, practices in the community and the authorities, in my view the essentials of a customary marriage between the plaintiff and the defendant in terms of s 3(1) of the Recognition Act were fulfilled. Both parties consented to marry each other according to customary law, and their marriage was negotiated, celebrated and entered into in accordance with customary law.

Why should it be necessary to go to court, at huge expense and at great risk, to prove that you are married? If you haven’t registered the marriage at Home Affairs, do so. Alternatively, put together a Lobola agreement.

We believe that this will help thousands of people who have entered into a customary marriage but now do not have any proof. This would secure the future of their children in case anything happens to the breadwinner and will also prevent family conflict as the assets of the deceased would automatically be the assets of the surviving spouse and the children.

The agreement would record the intention of the parties about their traditional wedding. The document would be a simple contract which would reflect:

i)             The names of the parties ;

ii)            The date of the traditional marriage ;

iii)           The intention of the parties with regards to the joint estate in the event one passes away;

iv)          The parties intention regarding the children born or to be born in the traditional marriage ;

v)           Any other issues to be included.

If you would like our help in putting together an agreement, confirming that you are, indeed, married, and to formalise things, please email Roy Bregman for a quotation.

Can a parent stop maintaining an ungrateful child?

Duration of duty to support child  

These are the general principles:

·         A parent’s duty to support a child does not cease when the child reaches a particular age but it usually does so when the child becomes self-supporting. Majority (18) is not the determining factor.

·         At common law, both divorced parents have a duty to maintain a child of the dissolved marriage. The incidence of this duty in respect of each parent depends upon their relative means and circumstances and the needs of the child from time to time. The duty does not terminate when the child reaches a particular age, but continues after majority.

·         The Divorce Act refers to ‘provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage’ and provides that a court granting a decree of divorce may make any order which it may deem fit in respect of the maintenance of a dependent child of the marriage.

·         The duty of support likewise revives if a child ceases to be self-supporting for reasons such as ill-health or disability.

·         A major is not usually supported on as lavish a scale as a minor. A major must be in dire financial straits before a court will order a parent to support him or her.

·         When a child marries, the duty of support rests primarily on the spouse. Only if the spouse cannot provide support can the parents be called upon to do so. If parents do support a married child, they have a right of recovery against the spouse.

Ingratitude

Can a child’s conduct relieve a parent of the duty to support? Voet (a 17^th century Dutch jurist) states that the duty ceases when the person to be maintained is guilty of ingratitude of a degree which would justify disinheritance.

However, ask yourself, as a parent, what you may have done to earn his or her ingratitude. There may be two sides to the story.

By way of interest (and not in the context of withholding payment to a minor child) in 2002, best-selling author, Wilbur Smith, launched an unusual ‘gross ingratitude’ lawsuit against his stepson, demanding that he return millions of Rands in cash and luxury gifts given to him over the years. Smith claimed that his stepson had demonstrated ‘gross ingratitude’ to him and had ‘rejected, humiliated and been unconscionably rude’ to Smith's new wife.