Thursday 21st April 2005


New rights under Estate Act

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Permit me to offer some information to correct certain statements made in an article entitled “Having a will” appearing in the Money Matters column of Raziah Ahmed on April 10.

1. When a person dies intestate or without having made a will, his/her property will be divided in the following proportions: one half to his/her surviving spouse and one half to surviving children.

Prior to the enactment of the Distribution of Estates Act, Act No 28 of 2000 (“the DEA”) on September 25, 2000, the intestate’s estate would have been divided one third and two third, respectively, as stated in the article under reference.

Further to this, under the DEA a cohabitant, or common-law spouse, is given a statutory right to claim an interest in the estate of the deceased intestate cohabitant provided the claim is made within 28 days of the death of the intestate cohabitant.

A cohabitant is defined in the DEA as an unmarried person living with another of the opposite sex, in a bona fide domestic relationship, for a period of not less than five years immediately preceding the date of death of the deceased cohabitant.

2. A will is not rendered void if a witness to the will is also a beneficiary named in the will. However, the gift to the particular witness will fail so that he/she will not benefit under the will as the testator may have intended.

3. Divorce does not nullify a prior will, however, a marriage that takes place after a will has been made will render the will void.

I trust that you will find this information helpful to your readers.

Jennifer Hudson-Phillips


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