With a lack of knowledge of South African law, one could be left with the popular misconception that common law marriages exist and become applicable when living with your partner in a permanent relationship.

In the past, if you merely lived as husband and wife, but did not actually get married, you were not protected by South African Law should your partner pass away as you did not automatically inherit from his estate.

This essentially meant that should you not have appeared in your partner’s will or should your life partner have passed on without having a valid will, the law did not provide you with any recourse under the Intestate Succession Act, 1987 (Act 81 of 1987) as you could not inherit as a “permanent life partner”.

Whilst there are many reasons why couples elect not to get married but remain in a committed relationship to one another, they should not be prejudiced for it.

After years of prejudice and discrimination, the Cape Town High Court, in a landmark case, (Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111 (28 September 2020)), has finally brought justice to those partners who live in such a partnership and has found that the Intestate Succession Act discriminates against unmarried life partners and ruled the Act discriminatory, unfair and unconstitutional.

Following this ruling, certain sections of the Maintenance of Surviving Spouse Act, 1990 (Act 27 of 1990) were also declared unconstitutional as it refers specifically to a “spouse” and not “partner” as prior to this ruling, when one partner died and the couple were living together, the surviving partner could not claim spousal maintenance from the deceased estate which a spouse was able to.

As a milestone in our law, the declaration of invalidity of these two Acts, is an important development on the rights of permanent life partnerships for opposite sex partners who were left vulnerable in their relationship and further advances the equality and dignity of all women and men in a permanent life partnership.

However, despite the ruling that a woman whose male life partner died without a will should inherit his estate, it is still better to have  a will as this is the only way for a testator (i.e. a person who has passed on) to ensure that their assets are being distributed as they intended.

The benefits of having a valid will include:

  • Being able to make specific bequests, in property or money, to your dependants, friends and preferred institutions or charities in your will. In fact, you can even specifically exclude someone from inheriting from your estate.
  • When making a specific bequest, you may include certain conditions and/or restrictions on such a bequest as long as such condition or restriction is not considered unlawful. The most common restriction included in a will is that the spouse of a beneficiary is excluded from any claim on the inheritance you have left to that beneficiary.
  • You may even nominate an alternative beneficiary if for some reason the first nominated beneficiary cannot inherit.
  • Should you have minor children, you can protect your minor children in the unfortunate event that you pass on by nominating a guardian to care for them or create a trust which protects their interests as in the absence of this provision or a will, the Court would make this decision.
  • You can select an executor, who you trust, to ensure that your wishes are carried out and that your estate is wound up after death. The selection may be with or without restrictions on the powers vested to such an executor.
  • You can determine the fee for the executor’s remuneration or if security is required by the executor.

These benefits are considered freedom of testation which in South Africa allows you to protect your estate long after you have passed on as if you do die intestate, the ones you leave behind will only be entitled to inherit a fixed portion of your estate as  outlined in the Intestate Succession Act.

As freedom of testation also allows you to update your will at any time while you are still alive, it is recommended that you always review and update your will with every change in circumstances be it a birth or death of a loved one to ensure that your wishes are carried out.