Die invloed van die Wet op Onderhoud van Langslewende Gades 27 van 1990 op testeervryheid vanuit 'n boedelbeplanningsperspektief

Abstract

Freedom of testation is a well established principle in South Africa although there are certain restrictions thereto such as the creation of fideicommissa in regard to fixed property and statutory limitations such as the Maintenance of the Surviving Spouses Act 27 of 1990. It appears that a divorced spouse is in certain circumstances in a better position than the surviving spouse - a position that appears to be unsatisfactory. The Act brought about an improvement for the surviving spouse who has been disinherited or for whom there has not been sufficiently catered for where there is in fact a need for maintenance. The principle of the Act is based on the need for maintenance by the surviving spouse. It is clear from the Act that the executor has the power to enter into agreements with the surviving spouse, heirs and legatees in terms of which assets may be transferred contrary to the will of the deceased. His assets may be transferred to a trust or the assets may be burdened by certain restrictive rights imposed on them in which case the beneficiary and heir's rights to deal with them are limited. The claim of a surviving spouse ranks concurrent with the claim of minor children for maintenance but does not compete with a claim by creditors of the estate. Estate planners must at all times keep the will of the testator in mind. Should a surviving spouse be disinherited or have received insufficient inheritance to provide for maintenance, the claim of a surviving spouse may have a detrimental effect on the intention of the testator and estate plan of the deceased.