One of South Africa’s fundamental legal principles is that of freedom of testation, which allows persons, with the requisite capabilities, to bequeath their assets to whomever they choose. However, the law also provides for reciprocal obligations for maintenance between certain parties, such as that between parents, children and spouses. It is important that those wishing to execute a valid will keep these obligations in mind, so as to ensure smooth and efficient winding up of the estate.

When it comes to matters of estate planning the testator must remember that before inheritance in terms of a deceased’s will is dealt with, there might be various possible claims against the estate that will take precedence. These include, but are not limited to:

•    Maintenance of surviving spouses, regulated by the Maintenance of Surviving Spouses Act 27 of 1990;

•    Maintenance obligations between parents and children, regulated by the Maintenance Act 99 of 1998;

•    Contractual claims, based on agreements entered into before date of death; and

•    Court orders to which the deceased was bound prior to date of death.

One should therefore consult with a specialist when drafting a will to ensure that all relevant matters are taken into consideration before a will is drafted.