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Where there isn't a Will, there is weeping |
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Written by Charl Theron
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Thursday, 25 February 2010 |
I was consulted by a woman who was married in community of property for 12 years. Her husband passed away without a Will.
He had a daughter of 15 from a previous marriage and a daughter of 10 with my client. In the parties’ joint names is a house valued at R800 000 and an outstanding bond of some R200 000. There is no other money in the estate.
Our client retains her half-share in the property. In terms of the Laws of Intestacy she inherits 54% of the husband’s half, some R216 000 worth. The children each inherit 23%. In her own name, our client would qualify for a new bond over the property. But sharing it with two minors, a mortgage bond cannot be registered without a Court Order. (Estates Act, Section 80).
If the deceased had, in a proper Will, bequeathed the whole property to his spouse, she could have registered a new bond, repaid the existing bond, and stayed in the house with the two children.
Now the property must be sold to repay the existing bond. The house suits my client, it suits the children, it is close to schools; it is home. Their lives are impaired by what amounts to an eviction.
Then, the cut due to each of the minors will be paid to the Guardians Fund. Aside from legal costs, agency fees, transport and the normal costs of moving house, the family gives away 23% of the purchase price. They not only have to make an unwanted move, they have to move down.
That is for the single reason that the deceased died intestate.
What he has left for us, not that it helps his family, is a salutary lesson. |