REUTERS/Ricardo Moraes
REUTERS/Ricardo Moraes

What South Africans can learn from Maradona's €150 million estate but no will

By Opinion Time of article published Dec 3, 2020

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Media have labelled the late Diego Maradona “poor” after passing away with only £75,000 in his bank account, but the Argentinian football legend’s estate is reportedly worth as much as £150m, including cars and houses. This is a substantial estate but Maradona, who was known to be the greatest footballer in history, did not leave a will.

Maradona reportedly said that he would not leave his family anything, preferring to give away all his earnings. According to Argentine law, however, an individual can only give away a fifth of their assets and at least two thirds must be left to the spouse or children of the deceased. Lawyers have suggested that distributing Maradona’s inheritance will be a complex task amidst numerous paternity suits.

While most of us will not have a £150m estate, there are important lessons to be learned from this situation. Below, David Thomson, senior legal adviser, Sanlam Trust discusses common questions about the importance of having a will, dependents and the effect on your family should you die without a will.

If I don’t earn much and have few assets in my name, do I need a Will?

As soon as you own any asset, even a bank savings account, you should consider drafting a Will. A Will allows you the last say on who should receive your assets after you pass away. If you do not have a Will, everything you owned will be distributed to family and relatives according to the Intestate Succession Act, and this may not be to your liking. Even if there are no family politics about who will inherit your belongings, everything you leave behind requires some sort of legal process to transfer to new owners. So your family members can’t simply “move-in” and take over where you left off. The legal process can be very lengthy if you did not plan properly for this through your Will.

If you are a member of your employer’s retirement fund, and you don’t have children dependent on you, your savings would pay into your estate. Having a Will relieves your loved ones from having to wind-up your financial affairs as the nominated executor handles this.

What implications can dying without a Will have on my family?

Children: Not having a valid Will has huge ramifications for the children left behind. There’s a risk that their inheritance will fall into the wrong hands that will mismanage it. Additionally, minor children require a guardian to take care of their affairs. They cannot enter into any legal agreements and financial transactions. They, therefore, can’t even legally manage their own inheritance.

Partners: Many couples cohabit and never get married. As a result, their surviving partners do not have a claim in terms of the Intestate Succession Act nor the Maintenance of Surviving Spouses Act. A last Will and Testament can solve this problem if you specifically catered for your partner in it. A recent decision by the Western Cape High Court in Jane Bwanya vs the Master, Kaplan NO & 8 others, has thrown a lifeline to unmarried partners when it ruled that the Intestate Succession Act 81/ 1987 & the Maintenance of Surviving Spouses Act 27/1990 are both unconstitutional as they do not include a partner in a permanent opposite sex life partnership in which the partners had undertaken reciprocal duties of support. However, the decision is subject to ratification by the Constitutional Court – which is not a fait accompli.

How does a Will affect debts, e.g. mortgage bond?

When a person passes away, most banks require that their bond is settled. The property will have to be sold to pay off the debt and accumulated interest. Your family or nominated heir will only receive the net proceeds of the sale if any. It is, therefore, crucial to have a life insurance policy that will be payable to your estate to settle the bond. Speak to a qualified financial planner to understand how you can do this as part of your estate planning.

If I write my last Will and Testament on a post-it and sign it, will it be a legal document?

No, that will not be valid in terms of our Wills Act No. 7 of 1953. However, if a court is satisfied that a document drafted by a deceased person was intended to be his or her Will, the court may order that the document is accepted for the administration of his or her estate. This will be a long and possibly expensive process, so I do not recommend it.

Can my dependents contest my Will?

The Intestate Succession Act sets out how your spouse (or spouses), children and relatives will share your estate. Your spouse and minor children have the right to claim against your estate if they are not sufficiently provided for whether you leave a Will or not.

Do I have to hire a lawyer to draft a Will?

No, you do not have to engage an attorney although that would be a wise thing to do. You may also engage the services of a trust company – like Sanlam Trust – to draft a Will. In terms of the Attorneys Act No 53 of 1979, no person other than an attorney, trust company or licensed board of executors may charge a fee for the drafting of a last Will and Testament.

What if I write a revised version of the Will? Do I destroy the old copy?

If your new Will contains a clause revoking all previous testamentary writings, then the “old” Wills fall away. It is not required that you destroy previous, revoked Wills. However if your latest Will does not revoke previous Wills then on your death all Wills are read as one, which can cause a lot of confusion. Therefore, if you are absolutely satisfied that your latest testamentary writing is a valid Will and you intended to annul your previous Wills, then it may be prudent to destroy them.

PERSONAL FINANCE

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