If you are divorced, you should take care to ensure that your family does not find itself embroiled in legal battles after your death, Johann Jacobs, an estate specialist at Walkers Attorneys in Cape Town, says.
If your will does not adequately meet the needs of your surviving spouse and the expectations of your children, Jacobs says your surviving spouse may be pitted against your previous spouse(s) and your offspring over the rights to your estate.
The key challenge, he says, is to provide for the surviving spouse of your most recent marriage, as well as to take into account the rights of a previous spouse (or previous spouses) and the children born of your marriages.
Jacobs says people often procrastinate when it comes to dealing with the competing issues of maintenance and inheritance, because they are complex and often emotional issues. But, he says, they must be tackled head-on, preferably with impartial legal advice, if conflicts between surviving family members are to be avoided or, at best, minimised.
A solution, he says, is to establish a testamentary trust.
Typically, if you remarried later in life, you may not have children from your present spouse, but you may well have children - now adults - from a previous marriage.
Every person has the freedom to appoint beneficiaries in terms of their will. But, Jacobs says, you should be aware that a surviving spouse, whose inheritance is inadequate for his or her maintenance requirements, may have a claim against your deceased estate for maintenance in terms of the Maintenance of Surviving Spouses Act.
He says this Act provides guidelines on how to plan your estate, and how to strike a balance between the conflicting demands of current and former families when drawing up your will.
Jacobs says the factors you need to consider include:
- The age of your surviving spouse. As a rule, the younger your spouse, the longer he or she is expected to live, and therefore the greater the amount of money you need to set aside for him or her.
- The duration of the marriage. The longer your and your surviving spouse have been married, the stronger the claim this spouse would have to receive mainten-ance from your estate.
- The most important factor is the existing financial means and earning capacity of your surviving spouse, coupled with his or her financial needs and obligations, Jacobs says.
Standard of living
Your surviving spouse should be entitled to maintain a similar standard of living as he or she had during your marriage. If your surviving spouse has an independent estate (with substantial assets of his or her own) or has the capacity to earn his or her keep (for instance, is well qualified and has a job), a maintenance claim from your spouse would generally be limited to any shortfall between his or her current earnings and the level of income he or she received during your marriage, Jacob says.
He says the key to whether your spouse is likely to challenge your will is the amount available in the estate for potential beneficiaries: the larger the amount, the more susceptible the estate will be to a successful claim from a surviving spouse.
He says when you try to strike a balance between the rights of your beneficiaries and your surviving spouse, you are generally confronted with two problems:
- Firstly, it is difficult to quantify the amount that you need to set aside for your surviving spouse; and
- Secondly, you would want to preserve any unused portion of the money you award to a surviving spouse, and prevent him or her from leaving that money to beneficiaries of his or her choosing at his or her death.
This is because you may want that money to go to your children from your previous marriages.
Jacobs says the best way of achieving this is usually to create a discretionary testamentary trust. This, he says, will ensure that your surviving spouse will be adequately provided for. It will also ensure that any unused funds in the trust will be preserved for the benefit of your children from your previous marriages, and that your money will not go to someone you did not intend to receive a benefit.
To minimise family conflict, he says, it is essential that you ask experts to help you draw up your will and that you appoint impartial people to serve as trustees of your testamentary trust.
Jacobs suggests that neither your spouse nor your children from your earlier marriage should have a casting vote in such a testamentary trust.