This blog discusses the importance of having a valid Will and the inheritance rights of unmarried partners in South Africa. It highlights the Bwanya case, where the Constitutional Court ruled that excluding surviving partners from the definition of a surviving spouse is unconstitutional. Proposed amendments to the Intestate Succession Act aim to align the law with this ruling.

Introduction

In this blog post, we will discuss the importance of having a Will, even if you are not married and have no children. Many individuals, like yourself, may assume that in the absence of a Will, their assets will automatically be inherited by their parents according to the set rules in South Africa. However, recent legal developments have altered the inheritance rights of surviving unmarried partners in cases where there is no valid Will.

We will explore the general rules that apply when someone passes away without leaving a Will, shedding light on the potential consequences for your assets. Additionally, we will delve into the Bwanya case, a notable legal case that has influenced the inheritance position of opposite-sex and same-sex couples living together but not legally married.

By understanding these legal aspects and proposed amendments, you will gain some insight into how your assets may be distributed in the event of your passing without a Will. Whether you possess a car, furniture, or cash in the bank, it is crucial to consider the implications and take appropriate steps to safeguard your intentions and protect your loved ones.

Let's explore the intricacies of inheritance laws in South Africa and how they affect surviving unmarried partners in such circumstances.

General rule

According to South African law, when an individual passes away without a legally valid Will, their estate will be distributed in accordance with the Intestate Succession Act 81 of 1987 (Intestate Act), after the payment of debts and administration costs. The Intestate Act outlines specific rules for the devolution of assets among the surviving spouse, children, parents, or siblings.

In cases where the deceased is survived by only a spouse and no children, the surviving spouse will inherit the entire estate. However, if there is a spouse and children, the estate will be divided equally among them, with the spouse being entitled to a minimum inheritance of R250,000. If the deceased person has neither a spouse nor children, their parents will inherit the estate in equal shares.

In the past, couples who were not legally married were not considered as qualifying for the definition of a surviving spouse under the Intestate Succession Act. Consequently, they were ineligible to inherit from their deceased partner's estate. This exclusion prompted numerous court cases challenging this position. However, in the landmark case of Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 (Bwanya case), the Constitutional Court ruled that denying surviving partners in a permanent partnership the status of a surviving spouse is unconstitutional.

To address this ruling, proposed legislative amendments were introduced in March 2023. These amendments directly impact couples who are living together and their inheritance rights when one partner passes away. The aim of these amendments is to align with the Constitutional Court's instructions in the Bwanya case, which involved the Intestate Act. The amendments are expected to come into effect soon, ensuring more comprehensive protection for surviving partners in such situations.

Bwanye case

The Bwanya case stands as a landmark legal precedent in South Africa concerning the inheritance rights of unmarried partners. The case revolved around Miss B and Mr AR, a couple who had been living together for over two years without being legally married. Tragically, Mr AR passed away before they could formalise their relationship. Consequently, Miss B found herself unable to inherit their shared home and Mr AR's movable assets.

In response to this, Miss B challenged both the Intestate Succession Act and the Maintenance of Surviving Spouse Act (MSSA), arguing that these laws discriminated against unmarried partners on the basis of their marital status. The Constitutional Court, in its ruling, concurred with Miss B's arguments, deeming the existing legislation discriminatory and unconstitutional.

As a result of the court's decision, it was ordered that the definition of "spouse" in the Intestate Succession Act and the MSSA be revised to include partners in permanent relationships, irrespective of whether they are legally married or not. The court granted Parliament a timeframe of 18 months to implement these necessary changes.
The Bwanya case serves as a pivotal moment in South African legal history, ensuring that unmarried partners are recognised and protected in matters of inheritance, thereby rectifying the previous discriminatory practices.

Intestate Succession Act 81 of 1987

The Department of Justice and Constitutional Development recently published a draft bill called the Judicial Matters Amendment Bill (Amendment Bill) in Government Gazette No. 48217 on 16 March 2023. It is important to note that there is no provision for public comment on this bill as the authorities deemed the amendments to the Intestate Act to be of a technical nature. These amendments, in light of the Bwanya case, now reflect the current legal position in South Africa.
Section 14 of the Amendment Bill expands the definition of "spouse" in Section 1 of the Intestate Act by introducing the following subsection:
"(1A) The word 'spouse,' wherever it appears in this section, includes a partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support."

The Amendment Bill proposes this amendment to Section 1 of the Intestate Act, in order to align the section with the judgment in the Bwanya case. The High Court ruled that excluding a surviving life partner in a permanent heterosexual life partnership, where the parties have mutually assumed duties of support, from benefiting under the Intestate Act is invalid and unconstitutional.

These proposed amendments demonstrate the efforts being made to rectify the previous exclusion and ensure that the law recognises and protects the rights of surviving partners in permanent partnerships, regardless of their marital status.

Master’s Office practice

In cases where a deceased estate involves a lifelong partner, it is recommended to follow the below procedure. As a standard practice, the executor of the estate should address a letter to the Master of the High Court, providing a report on the estate. The letter should explain that the deceased left no Will and were survived by a partner, although the partners were not legally married at the time of death. It should be emphasised that they were in a permanent life relationship and that the surviving partner should be considered the intestate heir of the estate.

To ascertain the eligibility of the surviving partner, certain reporting documents are required for submission to the Master's Office. These documents include:

• Certified copy of the surviving partner's identity document.
• If applicable, a certified copy of the cohabitation agreement can serve as evidence of the relationship.
• Two official documents provided by the Master's Office, namely the Next of Kin affidavit and the MBU 19, along with supporting affidavits.

The Next of Kin affidavit is to be completed by a family member who was familiar with the deceased. In this affidavit, the immediate family member must confirm, under oath before a commissioner of oaths, the deceased's blood and adopted relatives.

The MBU 19 is an official document from the Master's Office that must be completed by the surviving partner under oath and signed before a commissioner of oaths. This document includes the full names, surnames, and physical address of both the surviving partner and the deceased. The surviving partner also confirms the existence of the partnership at the time of the partner's passing.

Furthermore, the surviving partner must provide detailed information as evidence that they were in a permanent life partnership, where reciprocal duties of support were undertaken. It is advisable to include supporting documentation alongside the affidavit. The application should state the length of the relationship in months, whether the relationship was exclusive, shared family responsibilities, and any provisions made for the surviving partner as a beneficiary of a pension fund after the death of the other partner. Affidavits from family and friends, confirming the nature of the partnership, can be attached to further strengthen the case.

By following these recommended procedures and submitting the necessary documents, the Master's Office can assess the eligibility of the surviving partner for inheritance rights in the estate.

Conclusion

The Bwanya case marked a significant milestone in securing the rights of unmarried partners in South Africa, particularly regarding inheritance and maintenance matters. The subsequent proposed amendments to the Intestate Succession Act directly align with the ruling of the Constitutional Court in the Bwanya case, aiming to ensure legal recognition of the rights of surviving partners.

With the inclusion of section 1A in the Intestates Act through the Amendment Bill, the definition of a spouse has been expanded. Now, if the surviving partner can provide evidence of a permanent life partnership where reciprocal duties of support were undertaken, they are entitled to inherit according to the predetermined rules outlined in the Intestates Act.

It is crucial to take careful steps when drafting your Will, considering all potential outcomes, to ensure that your loved ones are properly provided for, and your assets are distributed in accordance with your wishes. Additionally, it's important to note that even if a surviving partner is disinherited, they may still have the ability to submit a maintenance claim under the Maintenance of Surviving Spouse Act (MSSA). For further information on this topic, refer to the blog post titled "Disinheriting my girlfriend: can she claim from my estate?" However, regardless of the situation, it is advisable to seek the assistance of a legal representative to ensure the proper handling of these matters.

By staying informed and taking the necessary precautions, individuals can protect the interests of their partners and ensure a fair distribution of assets in the event of their passing.