The right to disinherit a spouse and why a spouse must protect his or her property in a marriage!

A Last Will and Testament, as a legally binding document, derives its validity from adhering to the stipulations of the law. A Will that meets all the prerequisites of a valid Will cannot be invalidated solely on the grounds that a surviving spouse has been disinherited. This principle aligns with the doctrine of freedom of testation, asserting that a testator has the liberty to distribute their property through a Will to whomever they choose.

A testator holds the authority to disinherit any family member, with due regard to the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03]. In the notable case of Chigwada v Chigwada SC-188-20, the court emphasized that denying a person married out of community of property the right to dispose of their property as they see fit through a Will undermines the fundamental tenet of freedom of testation. De Waal & Malan[1] emphasize the perspective that “Nobody has a right to inherit. Leaving someone out of a will as a beneficiary therefore does not amount to an encroachment upon or taking away of an existing right.”

A surviving spouse can indeed be the subject of disinheritance through a Will that complies with all the formalities required for a valid Will.

Furthermore, the Wills Act imposes stringent formalities for the proper execution of a valid Will. Section 6 of the Wills Act outlines specific individuals who are ineligible to benefit under a Will. This includes witnesses to the testator’s signature, someone signing on the testator’s instructions, the writer of the Will when provision is made for their benefit, an official certifying the Will, a guardian or curator of the testator, and the spouse or child of any of the aforementioned.

Moreover, the Act disqualifies individuals who have benefited from a Will through fraud, duress, or undue influence on the testator. Additionally, those who conceal or destroy a Will, unlawfully or intentionally kill the testator or the testator’s spouse or child, and those who use any other unlawful method to obtain a benefit under a Will are also barred from benefiting.

Given the potential complexities and legal intricacies, seeking the assistance of a lawyer is imperative to ensure compliance with legal requirements when drafting a Will. Wills are often subject to contests, and failure to adhere to legal standards may result in the invalidation of the Will, making legal guidance crucial to safeguarding one’s testamentary intentions.