NAVIGATING WILLS AND MAINTENANCE IN COMPLEX FAMILY STRUCTURES: A GUIDE FOR FATHERS
When drafting a will, several critical issues must be addressed, especially for fathers in complex family situations. These include considerations for those married in community of property, fathers in second marriages with children from both marriages, and the inheritance and maintenance of minor children when a father passes away. This article will explore these intricacies and provide guidance on how to manage them effectively.
WILLS IN COMMUNITY OF PROPERTY MARRIAGES
When married in community of property, all assets and liabilities are shared equally between spouses. This means that each spouse owns an undivided 50% share of the joint estate. When drafting a Will, a father in such a marriage can only bequeath his 50% share of the estate. The surviving spouse is automatically entitled to their 50% share, irrespective of the Will’s stipulations.
For instance, if a father wishes to bequeath a farm to his son, he can only deal with his 50% share. The mother’s 50% share would need to be addressed separately, often requiring her consent to transfer her share to the son. The Will must include provisions for massing, where both spouses agree to treat their combined estates as one, and the surviving spouse must adiate (accept) the will after the death of the first spouse.
JOINT WILLS
A Joint Will can simplify estate planning for married couples, whether married in or out of community of property. This single document can cover three scenarios: the husband passing away first, the wife passing away first, or both spouses passing away together. Many legal advisors recommend Joint Wills as they provide a comprehensive approach to estate planning, ensuring that both spouses’ wishes are documented together.
However, in second marriages, some individuals prefer separate Wills to manage their estate planning independently. This is particularly common when there are children from previous relationships. Each spouse can then address their assets and financial wishes without the complications that might arise from blended family dynamics.
ADDRESSING THE MAINTENANCE OF MINOR CHILDREN IN WILLS
A critical aspect of drafting a Will is ensuring provisions for minor children. When a father passes away, his Will must cater to the possibility that some of his children might still be minors. South African law allows for freedom of testation, but it also imposes obligations on parents to provide for their minor children.
Parents can award assets to their children through beneficiary nominations or special bequests in their Will. For minor children, it is essential to consider their age and legal capacity. Any assets bequeathed directly to a minor Will be managed by their guardian. If no specific instructions are given, the cash assets might be paid into the Guardian’s Fund, administered by the Master of the High Court.
One potential issue is ensuring that the funds are used for the child’s benefit. In some cases, guardians might not be financially astute, leading to the mismanagement of the child’s inheritance. To mitigate this, parents can set up trusts to manage these assets until the child reaches the age of majority or another specified age.
MAINTENANCE CLAIMS BY ADULT CHILDREN
Even after reaching the age of majority, children may still require support. South African law mandates that a parent’s duty to support their child does not end with the parent’s death but continues until the child becomes self-supporting. This includes claims for maintenance by children over 18, particularly if they are still studying or are unable to support themselves financially.
In such cases, the child must provide proof of their need for support, such as invoices for tuition or accommodation. Maintenance claims by children rank above other claims against the estate, including those of heirs and legatees. This means that a child’s maintenance needs must be satisfied before any other bequests can be distributed.
BLENDED FAMILIES AND SECOND MARRIAGES
Fathers in second marriages with children from both marriages face additional challenges. Ensuring that children from a previous relationship are adequately provided for while also addressing the needs of the current spouse can be complex. It is not uncommon for conflicts to arise if the current spouse is not the biological parent of all the children.
For instance, a father might leave a life insurance policy to a child from a previous marriage, assuming this Will provide for the child. However, this does not negate the child’s right to maintenance from the estate. The child’s guardian can claim maintenance on their behalf, and this claim must be honoured before other bequests.
If the current spouse is financially dependent on the deceased, they may also have a maintenance claim under the Maintenance of Surviving Spouses Act. The executor must balance these competing claims, potentially reducing each proportionately if the estate cannot cover all demands.
CONCLUSION
Drafting a Will that addresses all these issues requires careful consideration and professional advice. Fathers must ensure their Wills comply with legal obligations and reflect their wishes while providing for the needs of their minor and adult children, especially in complex family situations. Consulting with a fiduciary specialist can help ensure that your estate planning is thorough and legally sound.
For expert and trusted advice, contact our Wills and Estates division at TDP. You can reach us by phone at 0414508799 or by email at wills@tdpsa.co.za.
The first 10 fathers who contact us after this article’s publication are eligible for a 50% discount on the cost of drafting their Wills. To see if you qualify, please ask to speak with Monique or Maurice.
