Any person nominated to receive an inheritance, whether it arises from a will or by virtue of the laws of intestate succession, may choose either to adiate (accept) or repudiate (renounce) that inheritance.
In terms of Section 2C(1) of the Wills Act 7 of 1953 (‘the Act’) it provides:
‘If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse’.
In other words, consequences of repudiation of an inheritance and what will happen to the repudiated benefits will depend on the terms of the will, if there is one. For example, the testator may have stated in the will that X is to inherit, failing him, Y is to inherit. If X predeceases the testator or repudiates the inheritance then Y will become entitled to it.
Where a benefit has been bequeathed in a will to the deceased’s surviving spouse and descendants and then one descendant repudiates his/her share, that share will devolve upon the surviving spouse.
The issues and consequences of Section 2C(1) of the Act has been dealt with in Moosa NO and Others v Harneker and Others 2017 (6) SA 425 (WCC), where uncertainty arose around the meaning of ‘spouse’ as it is unclear whether ‘spouse’ under the Act includes persons who are married under religious law such as, Shari’ah, Judaim or Hinduism, and whether Section 2C(1) includes female spouses who were married to the deceased testator at the time of his death.
Factual Background to the Matter
The legal issue for consideration in Moosa NO and Others v Harneker and Others was in view of the equality provisions in terms of the s 9 of Constitution, in light of the provisions of Section 2C(1) of the Wills Act and whether it can be extended to protect surviving spouses in polygamous Muslim marriages.
The salient background facts’ underpinning this matter is that the deceased testator, married two women, namely the second and third applicants by Muslim rites in 1957 and 1964 respectively. In 1983, the deceased, in order to secure finances from a banking institution to purchase land married one wife under the Civil law of South Africa. The finance raised was used to purchase a home where the deceased live until his death in 2014.
The marital home was an asset in the deceased’s estate which his Executor sought transfer into the joint name of both wives in accordance with the deceased will, read with a Redistributions Agreement concluded by his children born of both marriage. The agreement further recorded that the children renounces their testamentary benefit and this triggered the application of Section 2C(1) of the Wills Act.
Although Section 2C(1) refers to ‘surviving spouse’ in the singular, the Executor accepted both wives as a ‘surviving spouse’. The Executor interpreted Section 2C(1) through the prism of the Bill of Rights and took the view that the benefits renounced by the second and third applicant’s children vested in them respectively. This construction of Section 2C(1) was endorsed by the Master of the High Court for purposes of the Administration of Estates Act 66 of 1965. The Executor sought under the Deeds Registries Act 47 of 1937 to transfer to both spouses their respective share of the immovable property, however the Registrar of Deeds, Cape Town refused to register the property. The rationale underpinning the view, seems to be that the term ‘surviving spouse’ under Section 2C(1) should be strictly interpreted to encompass spouses recognized under the Marriages Act and or the Civil Union Act.
The court in addressing the question whether the exclusion of spouses in polygynous marriages as envisage by Section 2C(1) and enforced by the registrar of deeds, violates the equality provision as contemplated in s 9 of the Constitution of the Republic of South Africa, 1996, by specifically looking at Section 172 of the Constitution and weighing what is just equitable.
In the view, the court approached the defect by reading-in the term ‘surviving spouse’ in Section 2C(1) of the Wills Act which encompasses in its meaning not only a surviving spouse in the legal sense but also every ‘surviving’ husband or wife who was married by Muslim rites to a deceased testator contemplated by Section 2C(1), irrespective whether such marriage was de facto monogamous or polygynous.
Moreover, as pointed out by the court, the decision brings about parity and equal treatment of polygynous marriages under our law and will ensure that the same benefit and protection is accorded to women married to the same husband in polygynous marriages under Islamic Law.
Arthur Johannes | Consultant | Trusts & Estates
Lauren Barnard | Candidate Attorney
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