Notary Public & Commissioner for Oaths

1

My husband and I have two children. Can we leave everything to one another in our will or is there is a share to which our children are entitled?

Yes, it is possible to nominate each others as sole heirs. This will give the surviving spouse absolute power over the disposal of any assets belonging to the pre-deceased spouse without the need to obtain the children’s consent for any sale, capital withdrawal etc. Nevertheless, the children may demand the reserved portion due to them by law after the death of the first parent. The reserved portion amounts to one-third of all the deceased’s estate if the children are less than five in number, and to one-half of all the deceased’s estate if the children are five or more in number.

I have been co-habiting with my partner for the past 18 years. Can we enter into an unica charta will together?

No. An unica charta will may only be made by a married couple. The best solution would be to enter into two separate wills which provide mirror dispositions.

I have been living in my aunt’s house with my wife and children for the past 15 years. The house belongs entirely to my aunt and she also resides with us. Do I have the right to continue residing in the house after her death?

The law does not grant you an automatic right to continue residing in the house after her death on account of the fact that you’ve been living there for a significantly long time. You will only be entitled to continue residing there in one of these circumstances:

  • your aunt nominates you as her sole heir in her will; or
  • your aunt expressly provides in her will that she is bequeathing to you the right of habitation or the right of usufruct over the property; or
  • your aunt dies intestate and you are the next of kin according to the laws of the intestate succession.

In the absence of one of the above the scenarios, the heir/s will have the right to take possession of the property. Even if you are one of the heirs and there is no specific mention of a right of habitation/usufruct, then the other heirs may legitimately object to your continued possession of the property.

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