MCGREGOR
THIS IS the third in our series on the importance of making a will and how to go about doing one. We have so far covered why a will should be made, what it guarantees, and what happens in the event that someone dies intestate (without making a will).
It would be perfectly logical and fair for anyone to decide to exclude a relative from his will if the relationship had become strained. Moreover, the basic rule that a person who is eligible to make a will has 'testamentary freedom' implies that one has an absolute choice as to whom to make a beneficiary and what gift to leave that person under a will.
THE COURT'S POWER TO INTERFERE
Prior to 1993, testamentary freedom was unrestrained. A testatrix (or testator) could disinherit any of her relatives or dependants, and they had no legal recourse. However, since the enactment of the Inheritance (Provision for Family and Dependants) Act in 1993, the court has the power to vary or disturb the wishes of a testatrix as outlined in a will.
WHO MAY APPLY
This act allows certain categories of family or dependants of a deceased person to apply to the court for maintenance orders against a deceased person's estate. The persons who are eligible to make such an application are:
The wife or husband of the deceased, including a common-law spouse (a single woman (or man) who was living with the deceased as his (or her) wife for a period of not less than five years immediately preceding the date of the deceased's death).
A child, which includes an adopted child or a child who was not born at the date of the deceased's death.
A parent who was being wholly or partly maintained by the deceased.
A former wife or husband who was being wholly or partly maintained by the deceased or who had an existing court order for maintenance, but has not yet remarried.
An actual application which was considered by the Supreme Court in the case of Williams v Williams will best demonstrate how the act is intended to operate.
In this case, T died leaving behind W, his wife of 24 years, and two children - one natural daughter (D) and one adopted son (S). T's only asset at the time of his death was a house, which was registered solely in his name, although W had contributed to the purchase price. This house was also the matrimonial home.
Under his will, T left the house to D and his uncle. The will made no mention of W or S.
WHAT ORDERS CAN BE MADE?
W applied to the court under Section 4 of the act for an order that T had failed to make reasonable financial provision for her maintenance. After reviewing all the evidence, the court ruled in W's favour and ordered that she was entitled to 70 per cent of the estate, while D and T's uncle were entitled to 20 per and 10 per cent, respectively.
The judge said the court is always cautious about interfering with the testator's stated wishes. However, it is appropriate for a court consider what a just and wise testator would have done in all the circumstances of the case in determining whether an order should be made in favour of the applicant.
The act outlines the relevant factors for consideration in any application, but the list is not exhaustive. Some of the important factors are:
The financial resources and needs of all: the applicant and other relatives or dependants.
The testator's reasons for making no provision for the applicant.
The nature of the relationship between the testator and the applicant.
The size and nature of the testator's estate.
Whether the applicant has a mental or physical disability.
In the Williams case, the court ordered that W should benefit from the sale of the house, but that the house should only be sold after S reached 18 years of age. It should, therefore, be noted that, although it was W's application, the court considered the interests of S. Further, the court chose to order the sale of the house. In another case the court might have ordered the payment of a lump sum, the making of periodic payments or even the transfer of an asset to an applicant.
The moral of this story is that the law attempts to balance justice. Therefore, where the provisions of a will are likely to wreak injustice on persons who are entitled to maintenance, the court will intervene to curtail the abuse of testamentary freedom.
A little word can make a big difference
In last week's article the word 'not' was missing from the following sentence:
" . . . if the deceased died leaving children, but no 'spouse', his or her parents would not be entitled to share the estate with the children."
Sherry-Ann McGregor is a partner and mediator with the law firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
