Page 18 - Nexia SAB&T Estate Planning Guide 2024

n Reference to ‘children’ in a Will includes children conceived at that time who
are born later.
Exclusion from marital regime
n This is a standard clause usually inserted into a Will where the testator states
that any benefit his heirs or legatees may receive will not form part of the
assets of that beneficiary’s spouse.
Maintenance of Surviving Spouses Act (no.27 of 1990)
n This is one of the few instances where the freedom of the testator is limited.
If a surviving spouse has not been provided for in a Will, and is unable to
maintain him or herself from personal means or earnings, then she or he
can claim against the estate of the deceased for the provision of his or her
maintenance until his or her death or remarriage. A spouse for purposes of
this Act will include a party to a customary marriage, a monogamous and
polygamous Muslim marriage and a civil union.
Member’s interest in a Close Corporation
n This is another instance where the freedom of the testator may be limited, to
a degree.
n Section 35 of the Close Corporations Act (no.69 of 1984), provides that,
subject to the association agreement, where an heir is to inherit a member’s
interest (in terms of the deceased’s Will), the consent of the remaining
members (if any) must be obtained. If no consent is given within 28 days
after it was requested by the executor, then the executor is forced to sell the
members interest in one of three ways, i.e, either:
(a) To the close corporation itself, or
(b) To the other members in proportion to the interests of those members in
the close corporation, or as they may otherwise agree upon, or
(c) To any other person who qualifies for membership of a corporation in terms
of section 29.
It may therefore be advisable for a member to ensure that a proper Association
Agreement is in place between the members of the close corporation, that explicitly
states what the members’ rights are upon death.

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