Pretoria - Being married in community of property does not mean that the surviving spouse inherits all.
South African law is clear that people have the freedom to choose who should inherit, as long as this is done lawfully and is not contrary to public policy.
This is according to a Johannesburg high court judge, following a legal battle between two widows – both of whom claimed to be married to a deceased man.
The court ruled in the end that the applicant was indeed married to the deceased, while he and his second wife, with whom he lived at the time of his death, were not legally married.
But Judge Q G Leech said it does not matter which of the two women was legally married to the deceased, as this did not impact on his last will regarding who should stand to inherit from his estate.
Sesi Mnisi (the applicant) asked for an order declaring her marriage to the deceased, Christopher Mnisi, to be valid and the marriage, as claimed by the second widow Thelma Mnisi (respondent), to be invalid.
She also asked that the mutual will executed by the deceased and the respondent to be invalid. The respondent contended that the marriage between her and the deceased was valid, and did so up until the hearing. However, she later stated that “as much as I was married to the deceased customarily as well as in a civil way … I will not contest the issue of the marriage”.
The court accepted this, but said the main issue was whether the mutual will between the respondent and the deceased was valid, given the fact that he and the applicant (to whom he was legally married) were married in community of property.
The applicant did not contest the will on the basis that it was not legally drawn up, but she argued that as she was married to the deceased in community of property, where half of his assets belonged to her, she stood to inherit his share.
In terms of the will drawn up between the deceased and the respondent, the longest surviving spouse was the sole heir. If both died at the same time, the estate would go into a trust for their children.
The applicant told the court that she was unaware of this will up to the death of her husband.
The will, which came under scrutiny in court, stated that the deceased and the respondent were married in community of property.
Judge Leech commented that it was not clear whether the deceased actually believed that he was lawfully married to the respondent or was “under the pretence” that he was.
However, he said, the issue was irrelevant as it was accepted that the will was drafted legally. The only question was whether the fact that the deceased and the applicant were married in community of property invalidated the will, thus rendering it void.
Counsel for the applicant argued that should the marriage between the deceased and the respondent be found to be void, it would mean the mutual or joint would have to suffer the same fate.
It was argued on the premise that “a spouse in a marriage that is in community of property may not legally enter into a mutual will with someone else other than the person he or she is married to”.
But Judge Leech said the submission that there is a legal impediment to the execution of a mutual will by anyone other than spouses “sits uncomfortably” with the principle of freedom of testation.
The judge said the law is clear that testators are permitted to dispose of their assets freely, as long as it’s within the law.
The judge said in a mutual will, each spouse is free to dispose of their half share in the joint estate to whomever they prefer and they may change their minds, as testaments are also invalidated or revoked by the testator when the latter has changed his or her mind.
“The general rule does not imply that only spouses may enter into a mutual will, as contended by the applicant. To the contrary, the general rule contemplates that every person enjoys the freedom of testation.”
The judge concluded that spouses may change their wills without informing or discussing the matter with their spouse and may do so with someone other than their spouse.