What happens if the terms of your will change?
We recently wrote about the risks associated with intestacy. If you die intestate – without a will – your estate is subject to the provisions of the Intestate Succession Act 81 of 1987, which we outlined in the article mentioned. A client asked us what would happen if someone has a will but the conditions have changed and they die without making the necessary changes to the will. For example, you leave your residential property to your children, but you sell the property indicated in the will and buy another without changing the will. Then you die. Our client wanted to know if the law would automatically bequeath the new property to their heirs.
Ademption
This scenario is covered in South African law by a legal doctrine called “ademption”. This principle is not unique to South Africa and refers to the complete or partial withdrawal of a legacy by an act of the testator (the person who made the will) during their life. Ademption occurs when a specific bequest in a will cannot be fulfilled because the item or asset specified no longer exists or has fundamentally changed character at the date of death. In other words, it is no longer part of the testator’s estate. This happens when the testator has sold, given away or otherwise disposed of the item before they die.
When it comes to the residential property named in the will, which the testator no longer owns, the specific bequest is considered to be adeemed: it is void because the property no longer forms part of the estate. Whether or not the new property is automatically substituted for the one specified depends on the wording of the will. The executor will need to believe that it was the intention of the testator to leave the new property to their children just as they did the former property. This is not unreasonable, but must not be assumed. The testator may have made other provisions for the children, for example generous gifts of cash or assets, with the intention of disposing of the property in another way.
Residual clause
The executor will examine the will in search of a residual clause. The residue of the estate refers to the balance of the estate that remains after payment of debts, estate duty and administration expenses, and effect has been given to the legacies and special bequests. If the will contains a residual clause which states, for example, “the rest, residue, and remainder of my estate” – then any property not specifically bequeathed would fall into this category and be distributed according to the clause. In our scenario, the heirs would inherit the new property.
If there is no such clause, the situation is a bit trickier. If the valid will does not dispose of all property, i.e., the new property is not included in the will and there is no residual clause, the portion not disposed of is the subject of intestacy law. The assets will be distributed among the heirs as stipulated by the Intestate Succession Act. In our example, if the testator is leaving their estate to their children because there is no spouse, the children will still inherit the property according to the law of intestacy. If there is a spouse, for example the testator has remarried after making the original will which only named the children, the situation is more complicated and may wind up being decided in court. The children can make a claim against the will.
Update your will
This query is an excellent illustration of why it is so important to keep your will up to date. If your circumstances change, your will should reflect the new reality. We often talk about the need to amend a will after divorce or the birth of a child, but this example shows that other life events should also be captured. It may be the last thing on your mind when you move house, but as soon as the boxes are unpacked, revise your will with your new address. If you take out a new insurance policy or make an investment, note it in your assets.
Or…make sure you have an adequate residual clause that will sweep up any assets or items you have neglected to mention or bequeath.
Don’t go it alone
As we always stress, legal advice is recommended. A legal professional will make sure your will contains the requisite residual clause, and any other relevant clauses, clearly written for ease of interpretation. This will reduce the risk of complications which could lead to litigation. Your heirs will be grieving; don’t saddle them with a legal dispute as well.
SD Law can help
Cape Town law firm Simon Dippenaar and Associates Inc. can help you draw up your will to ensure your estate is distributed and your children are cared for exactly the way you would like after your death. Contact Simon now on +27 (0) 86 099 5146 or email him on simon@sdlaw.co.za to discuss your needs.
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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.