The TV series The Polygamist has South Africans talking about love, power, family, money, and what happens when one life stretches across more than one household. However, while the on-screen dramas and marital scandals entertain us, they also raise some very real questions about who inherits what when someone with multiple partners, homes and children dies.
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Advocate Sankie Morata CFP®, Chief Executive of Sanlam Trust, says the conversation matters because South Africa’s family structures are as varied as its people. “Polygamous customary marriages are recognised under South African law when they meet the relevant customary and legal requirements. Families that incorporate multiple households must have estate plans that reflect their reality. With so many marriage regimes to choose from, you need a proper estate plan to ensure what you’ve built in your lifetime lands up with the right people when you pass away.”
No will? The law decides, and families feel the consequences
In The Polygamist, the fictional world of Jonasi Gomora is full of secrets and conflict. This can quickly become a real-life scenario if a member of a polygamous family dies without a will. If there is no valid will, the estate is wound up under the Intestate Succession Act. This means the law applies a fixed formula to distributing the assets, not necessarily according to the person’s wishes.
In a polygamous customary marriage, where the deceased leaves surviving spouses but no children, the spouses inherit the estate in equal shares.
Where someone leaves behind multiple spouses and children, each spouse is entitled to the greater of either R250 000 or a ‘child’s share’. The ‘child’s share’ is calculated by dividing the total estate value by the total number of spouses and children (including predeceased children who left descendants).
For example, an estate worth R10 million with three spouses and seven children (10 parties, in total), a child’s share will be R10 million divided by 10, i.e. R1 million each. In this case, the spouse would get R1 million because it is more than R250 000. After each spouse receives their portion, the remainder of the estate is shared equally among the children.
“When someone dies without a will, the family (or families) may end up having to divide everything, which in the case of fixed property and businesses can be totally impractical and a recipe for conflict.
“In such a scenario, the use of trusts can play an invaluable role. Instead of placing assets into a trust for growth and to benefit the entire family or household, you will end up with multiple spouses and children dividing the same estate until each person walks away with far less than what proper planning could have achieved,” Morata explains.
Placing some assets in an inter vivos (living) trust or trusts, or bequeathing assets to one or more testamentary trusts by way of a will, would ensure the growth of those assets takes place in the trust, and through skilful drafting of the trust deed, can then be enjoyed or used by all.
This avoids having to sell assets or family businesses to get cash for immediate family needs. In the case of a family business, the shareholding could be bequeathed to a trust to ensure the family gets equal benefit. Otherwise, you run the risk of having to divide the entire estate by the total number of children and surviving spouses.
For example, if there are five wives and 20 children, it would have to be divided among all of them. In a business context, this is highly impractical.
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A properly structured testamentary or inter vivos trust allows assets to remain intact and continue generating income and capital growth over time, for the benefit of beneficiaries. The estate planner chooses the beneficiaries, instead of the intestate law determining who should inherit and benefit.
Rather than receiving a once-off inheritance that could run out quickly, beneficiaries can enjoy ongoing pay-outs, educational support, housing assistance, healthcare funding, or other benefits in line with the deceased’s wishes. This is a good way to preserve and promote intergenerational wealth and ensure that family assets continue serving the family for many years.
A clear will must name names
If there is one place where families cannot afford vagueness, it is in the will.
“In a household with more than one spouse and many children, a vague will is risky. Saying ‘my children’ or ‘my wife’ may not be enough. You must be clear about who inherits what because assets can end up going to people you did not intend to benefit,” Morata explains.
A well-drafted will for a complex family should:
- State who inherits which home or asset;
- Identify what belongs to each household; and
- Provide fairly across the different branches of the family.
Morata also advises the inclusion of what’s called ‘substitution provisions’ in a will. “This ensures that if a spouse, child, or other beneficiary dies before the testator (the person whose will it is), that beneficiary’s share passes to their descendants rather than lapsing. This protects the interests of each family branch, preserves the testator’s intentions, and helps avoid unintended outcomes or disputes among surviving family members.”
If beneficiaries are listed clearly by name and relationship, alongside the specific assets or benefits intended for them, there is less chance of confusion and conflict.
Can a ‘deathbed will’ be challenged?
One of the most uncomfortable questions raised by The Polygamist is what happens when a person changes their will when they are elderly, ill, vulnerable or close to death.
Under South Africa’s Wills Act, a person aged 16 or older may create a will, provided they are of sound mind, which means they know what they are doing, they are aware of what they own, and they understand the effect of their decisions. For the will to be legally valid, it must also be signed and witnessed correctly.
“The family must make sure the person is of sound mind, and that there is no pressure, dementia or mental illness affecting their ability to make decisions. That is why witnesses and proper guidance are so important,” Morata cautions.
Practical safeguards can make a significant difference when a vulnerable person wants to draft or update their will. This includes getting a professional expert, like a testamentary consultant or an attorney, to assist, making sure the will is signed by independent witnesses (people not named in the will), keeping a clear record of instructions, and doing a medical assessment at the time of signing the will.
Estate planning is a family affair
The moral of the story is that complex families need carefully built estate plans that reflect the circumstances of the people they are meant to protect. “Make sure your family structure can continue after you pass on and that the lifestyle and standard of living your family is used to can be maintained,” Morata advises.
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