Dying without a will under customary law: A painful decision for a judge to make
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Dying intestate generally leaves a mess behind for loved ones. File photo.
Nicola Mawson
EARLIER this month, Gauteng High Court, Johannesburg, Acting Judge WJ du Plessis made a painful decision over the customary law definition of marriage and how this affected where someone, who died without a will, would be buried.
Dying intestate generally leaves a mess behind for loved ones, who then must sort out what happens with your estate. In this case, it was even more tragic.
Without a will, your estate will be transferred according to the Intestate Succession Act of 1987. This means that your estate will be divided among your surviving spouse, children, parents or siblings according to a set formula, the Department of Justice explains on its website.
Generally, this means that the beneficiaries in order of preference are:
- The spouse of the deceased.
- The descendants of the deceased.
- The parents of the deceased (only if the deceased died without surviving spouse or descendants).
- The siblings of the deceased (only if one or both parents are predeceased). The Intestate Succession Act should be read in such a way that it can accommodate cases where the deceased was a husband in polygamous customary union.
- When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.
- When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but:
- Each wife should inherit at least R 250 000.
- When the estate is not large enough to allow each wife to inherit R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.
It gets more complicated when it comes to various forms of law. However, the case in which Justice du Plessis had to decide dealt with customary law.
If there is no will, the Recognition of Customary Marriages Act of 1998 recognises “a party in a subsisting customary marriage” if that marriage is completed in terms of the act. Then, there is the Reform of Customary Law of Succession and Regulation of Related Matters Act of 2009, which created a further group of women who qualify as spouses for intestate succession purposes. “They are the seed-bearing woman in terms of Customary Law,” the Department of Justice website said.
Judge du Plessis had to deal with the tricky aspect of whether someone was married in terms of customary law. In this case, and we’ll call him the husband for the purpose of this article, the question of whether lobolo had been paid in full was key in the argument that the deceased should be buried with her biological family’s ancestors.
The couple lived together for 15 years and had a child, for which the husband, the respondent. The husband argued that he was accepted as a son-in-law by his wife’s family. Her son from another relationship, the applicant in the matter, argued that lobolo was never paid in full, so there was no marriage.
After the woman died, there was talk of where she would be buried, with an initial agreement that it would be at her birthplace in KwaZulu-Natal. Then her husband decided that he and his family would bury his wife, then there was again a decision to bury her with her biological family, and then the husband insisted on collecting her body.
“This is when the applicant sent a letter of demand warning that they would approach the court, and this is how the matter eventually ended up on my roll on a Friday afternoon at 15:00,” stated the acting judge in the ruling.
Judge du Plessis considered all these emotional aspects and concluded that, “even if I am wrong on the issue of the marriage, the fact that the first respondent and the deceased have been together for a significant part of their lives, the fact that they had three children together, and the fact that they stayed together until her last days, all weighed into the decision that I have made to let the first respondent determine how the deceased should be buried”.
As a result, Judge du Plessis ended up making a judgment that “caused pain to the already grieving applicant and the family in KwaZulu-Natal, who wanted the deceased buried close by in their family graveyard”. “This almost impossible decision was not taken lightly.”
Harry Joffe, Head of Legal Services for Discovery Life, explained that the issue around life partners and inheritances/intestate succession is incredibly complex, and in most cases, parties will end up in court without comprehensive wills. “Each case is different and depends on its own special facts,” he added.
Joffe noted that so-called life partner relationships are only recognised for estate duty and income tax purposes, but intestate becomes more complex. He provided the definition of “spouses” in terms of the law:
Spouse: In relation to any deceased person, spouse includes a person who at the time of death of such deceased person was the partner of such person –
- In a marriage or customary union recognised in terms of the laws of the Republic.
- In a union recognised as a marriage in accordance with the tenets of any religion; or
- In a same-sex or heterosexual union which the commissioner is satisfied is intended to be permanent.
Here, a life partner will be recognised if the facts can prove a permanent relationship, he said.
“If the marriage is a valid marriage in terms of the legislative requirements for a customary marriage, then the party will be a spouse for intestate succession purposes. The problem normally arises in practice when the formalities for a valid customary marriage have not been complied with, just like the case that started this discussion,” Joffe told Personal Finance.
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