Anomaly in two important pieces of legislation addressed

Life partners, whether in a same-sex or opposite sex relationship, will in future be treated as a “spouse”, allowing them to inherit or claim maintenance from their deceased partner’s estate under the Intestate Succession and the Maintenance of Surviving Spouses Acts.

This follows a recent judgment in the Constitutional Court ruling that both acts were unconstitutional and had to be amended by Parliament within 18 months of the ruling.

Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa (Fisa), says the case was initially decided in the Western Cape High Court when Jane Bwanya sought an order to have certain provisions of the two acts declared unconstitutional.

Bwanya was in a relationship with Anthony Ruch and they were planning to get married. However, Ruch died unexpectedly and without a valid will in place.

In broad terms, in terms of the Intestate Succession Act (ISA) the benefits in the estate go to the spouse or children, or the parents of the deceased when there is no spouse or children.

In the 2006 case, Gory v Kolver, Mr Gory was the survivor in a same-sex relationship and successfully applied to the Constitutional Court to be regarded as a “spouse”. At the time partners in a same-sex relationship could not formalize their relationship in any way; it was only after the promulgation of the Civil Union Act that this became possible.

The court found that Section 1 of the Intestate Succession Act was unconstitutional as it discriminated based on marital status, and Gory was able to inherit from his partner’s estate.

“This led to an anomaly in our law where the law allowed partners in a same-sex relationship to inherit from each other in the absence of a will, but partners in an opposite sex relationship could not,” says Van Vuren.

In an earlier decision in 2005 the Constitutional Court found in the Volks v Robinson matter that a claim under the Maintenance of Surviving Spouses Act (MSSA) was not available to a partner in an opposite sex relationship who did not tie the knot. The surviving partner could not be considered a “spouse” under the MSSA, as this legislation defined a “spouse” as a spouse in a marriage.

The gist of the judgment was that people in a cohabitation relationship made a choice not to get married, even if they could, and therefore had to live with the consequences.

In the Bwanya matter the Western Cape High Court ordered in her favor that the ISA was unconstitutional because it discriminated unfairly on the basis of marital status, but rejected her claim under the MSSA because the court had to follow the Volks judgment handed down by a higher court.

The Bwanya matter went to the Constitutional Court to have the order of unconstitutionality of the ISA certified. Bwanya was also granted leave to appeal to the court to consider the decision that she does not have a claim under the MSSA.

“That is when the fun started,” says Van Vuren.

Six judges held that the court was not bound by the Volks v Robinson decision since the facts of the matter before them differed from the earlier case. The court said there were more than three million South Africans in life partnerships and by not extending the right to inherit from each other under intestate law amounts to unfair discrimination on marital status.

The court said the argument that parties who do not get married choose not to do so does not take cognisance of the vulnerable position of especially women in relationships.

It ordered that both the ISA and MSSA were unconstitutional and should be read to include “a partner in a life partnership complying with the reciprocal duties of care, maintenance and support”.

In two dissenting judgments four judges, including former chief justice Mogoeng Mogoeng, argued that the majority did not advance sound reasons why the decision in Volks was “demonstrably wrong”. They felt the court remained bound by the prior judgment.

Van Vuren says it is important for an executor in a deceased estate to take note of the majority judgment in the Bwanya matter should they encounter similar circumstances.

“The only logical thing to do is to either wait until Parliament has amended the acts or accept that the claim against the estate is valid. If you do not, then the survivor in such a relationship will simply take the matter to court again. ”

It is unclear why the effect of the order was postponed for 18 months, remarks Van Vuren. It should not be difficult to amend the acts, since there is already a very broad definition of spouse in both the Income Tax Act and the Estate Duty Act.

He warns against the perception that it is not necessary to have a proper will on the back of the Bwanya case. There are several practical reasons why it remains necessary. One is that the ISA provides for the spouse and descendants to benefit from the estate. If the estate is worth R1.6 million but most of it is tied up in a property it may have to be sold to be divided equally between the spouse and children, especially if the spouse is not the natural parent of the children.

Another reason is that all estates above R250 000 require the appointment of an executor. In the absence of a will this could cause unnecessary delays.

“Our advice is to find someone who knows what they are doing to draft your will,” says Van Vuren. “The cost could be extreme if you do not.”

Brought to you by the Fiduciary Institute of Southern Africa (Fisa).

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