Do I have capacity to inherit?

Do you have capacity to inherit? Did you know there are certain people who can’t inherit from an estate? Did you know there is a difference between having a vested right to inherit and actually enjoying the inheritance? A vested right is when you have the capacity to inherit but does not necessarily mean you have an unlimited right in the inheritance. Enjoying the inheritance on the other hand does include an unlimited right to the inheritance. This is all known as the capacity to inherit or a beneficiary’s ability to inherit.

Who may inherit?

Natural persons:

Major persons

A major beneficiary (a person 18 years of age or older) who is of sound mind and has legal standing (meaning he/she is not insolvent) will acquire a vested right in the inheritance and will be able to exercise unrestricted enjoyment of the inheritance, as long as he doesn’t repudiate (reject the inheritance).

Minors

Someone under the age of 18 is a minor beneficiary. A minor has capacity to inherit from a deceased estate. His/her ability to enjoy the inheritance, however, is restricted. The minor's guardian will administer the inherited property for the benefit of the minor under the supervision of the Master of the High Court's office.

If a minor inherits movable property, for example a car, he/she acquires a vested right. The minor's guardian will receive the movable property use the property for the benefit of the minor. Alternatively, it must be kept safe for the future use of the minor. The guardian must ensure that this happens.

A minor who inherits cash does not physically receive the cash. This way the minor cannot carelessly spend the cash. The Administration of Estates Act 66 of 1965 states that the money must go to the Guardian’s Fund. The Master of the High Court administers the Guardian's Fund. The minor’s guardian is from time to time allowed to withdraw funds for the maintenance of the minor. The money can also go into a testamentary trust created by the testator in his/her will. A trustee will administer the testamentary trust. This option is more advisable.

If the minor inherits immovable property (a house), the property is immediately registered in the minor’s name in the deeds office. The minor, however, can’t necessarily alienate, pledge, cede or mortgage the property. The minor’s guardian must administer the property until the minor becomes a major.

Unborn and illegitimate children

South African law recognizes an unborn child’s capacity to inherit. The are requirements that must be met, namely:

• the child is already conceived at the time of the devolution of the estate,

• the inheritance has to be to the advantage of the unborn child, and

• the child has to be born alive.

Illegitimate children have the same capacity to inherit as legitimate children.

Persons of unsound mind

Persons of unsound mind include more than insane or delusional people. People who act perpetually irrational due to drugs, alcohol or disease may also be regarded as being of unsound mind. A person of unsound mind has capacity to inherit, but can’t necessarily enjoy his/her inheritance without restrictions. A court appointer curator bonis will administer the inheritance on the beneficiary’s behalf. The property will be managed as if he/she was a minor.

Prodigals and insolvent persons

A prodigal is someone who spends money excessively. A prodigal is not seen as someone who is of unsound mind. However, his/her ability to deal with his/her estate is limited. A court appointed curator's assistance will be required.

An insolvent has capacity to inherit. However, any property he/she owns falls into the insolvent estate and a trustee must administer it for the benefit of the creditors.

Juristic persons:

In terms of the Intestate Succession Act 81 of 1987 only natural persons may inherit intestate. There is, however, nothing stopping a testator from nominating a juristic person, like a company or closed corporation, as a beneficiary in a will.

Persons disqualified from inheriting

There are persons who can be disqualified from inheriting. In terms of common law a person may not benefit by his/her own wrongdoing. These persons would be:

Beneficiaries who caused the death of the deceased

Beneficiaries who caused the death of the deceased or the death of someone close to the deceased (surviving spouse, parents or children) may not inherit from that person's estate. This person is, however, not automatically disqualified and the Master of the High Court does not have the authority to disqualify him/her. This requires a court order.

Unworthy persons

An indignus or unworthy person is also disqualified from inheriting. Someone who acts in a despicable manner towards the deceased and does so according to prevailing public policy notions, is an unworthy person.

Beneficiary involved in execution of will

In terms of Section 4A of the Wills Act 7 of 1953, a beneficiary involved in the execution of a will may not benefit from that will. Any person who signs the will as a witness or as an amanuensis or anyone who writes out the will or any part thereof in his/her own handwriting and the person who is the spouse of such person at the time of the execution of the will, is disqualified from receiving any benefit from that will.