Author: June Theron – STBB
22 January 2019
MAKING A BEQUEST IN YOUR WILL TO A BENEFICIARY WHO IS MARRIED IN COMMUNITY OF PROPERTY
When you make a bequest in your will to a beneficiary who is married in community of property, the inheritance will fall into the joint estate of that beneficiary and his or her spouse. If a testator seeks to avoid this result, the will must expressly state that the bequest is excluded from that beneficiary’s joint estate which he or she shares with his or her spouse.
Such an exclusion will however not protect the beneficiary from a claim by creditors of his or her spouse. The court in Du Plessis v Pienaar NO and others held that where a person in a marriage in community of property incurs a debt, his or her spouse is also liable for that debt. This means that the creditors of the beneficiary’s spouse will be entitled to bring a claim against the joint estate, as well as against such a beneficiary’s separate property, including an inheritance, in seeking settlement of their claim.
Contact STBB for assistance in the drafting of your will.
June specialises in trust law, wills and the administration of deceased estates. She is also a Conveyancer and as such is able to give expert advice on property issues related to trust law, wills and the administration of deceased estates. For several years she was an active member of the Wills, Estates and Trusts committee of the Cape Law Society until its dissolution in 2018 with the inception of the Legal Practice Council. With over 30 years experience in her fields of specialization, June strives to offer a professional, personal and cost effective services to clients.