Any person nominated to receive an inheritance, whether it arises from a will or by virtue of the laws of intestate succession, may choose either to adiate (accept) or repudiate (renounce) that inheritance.
In terms of Section 2C(1) of the Wills Act 7 of 1953 it provides:
Where a deceased dies testate or intestate and certain of the testate or intestate heirs elect to renounce their right to the inheritance, the provisions of section 2C(1) and (2) of the Wills Act 7 of 1953 or section 1(6) and (7) of the Intestate Succession Act 81 of 1987, respectively, must be adhered to.
Section 2C of the Wills act determines:
“Surviving spouse and descendants of certain persons entitled to benefits in terms of will.
(1) If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.”
Section 1 of the Intestate Succession Act
(6) If a descendant of a deceased, excluding a minor or mentally ill descendant, who, together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his right to receive such a benefit, such benefit shall vest in the surviving spouse.
(7) If a person is disqualified from being an heir of the intestate estate of the deceased, or renounces his right to be such an heir, any benefit which he would have received if he had not been so disqualified or had not so renounced his right shall, subject to the provisions of subsection (6), devolve as if he had died immediately before the death of the deceased and, if applicable, as if he was not so disqualified.”
Where, for example, A dies intestate and he leaves a spouse and three children, and the children renounce their inheritance, the inheritance will devolve upon their surviving parent. Similarly should A die testate and bequeath his estate to his wife and children, and the children elect to renounce their inheritance, such inheritance will devolve upon the wife
However, where A dies intestate or testate and he only leaves children, and only some of the children renounce their inheritance, such renounced inheritance will only devolve on the remaining child, if the renounced heirs have not left any descendants who will represent such heirs such descendants will represent the renounced heirs, and division of the estate shall take place per stirpes.
In other words, consequences of repudiation of an inheritance and what will happen to the repudiated benefits will depend on the terms of the will, if there is one.
The issues and consequences of Section 2C(1) of the Act has been dealt with in Moosa NO and Others v Harneker and Others 2017 (6) SA 425 (WCC), where uncertainty arose around the meaning of ‘spouse’ as it is unclear whether ‘spouse’ under the Act includes persons who are married under religious law such as, Shari’ah, Judaim or Hinduism, and whether Section 2C(1) includes female spouses who were married to the deceased testator at the time of his death.
The legal issue for consideration in Moosa NO and Others v Harneker and Others was in view of the equality provisions in terms of the section 9 of Constitution, in light of the provisions of Section 2C(1) of the Wills Act and whether it can be extended to protect surviving spouses in polygamous Muslim marriages. The deceased married two woman in terms of Muslim rites
The marital home was an asset in the deceased’s estate which his Executor wanted transfer into the joint name of both wives in accordance with the deceased will, and as read with a Redistributions Agreement concluded by his children born of both marriage. The agreement further recorded that the children renounces their testamentary benefit and this triggered the application of Section 2C(1) of the Wills Act.
Although Section 2C(1) refers to ‘surviving spouse’ in the singular, the Executor accepted both wives as a ‘surviving spouse’ and the Master duly accepted the interpretation and accordingly approved the L&D account. The Executor in terms of the Deeds Act wanted to transfer the immovable property to the surviving spouses, however the Registrar of Deeds, Cape Town refused to register the property. The reason being that terms surviving spouse should be strictly interpreted in terms of section 2C(1).
The court in addressing the question whether the exclusion of spouses in polygynous marriages as envisage by Section 2C(1) and enforced by the registrar of deeds, violates the equality provision as contemplated in section 9 of the Constitution and specifically looking at Section 172 of the Constitution and weighing what is just equitable.
The court held that: “ For purposes of this sub-section, a ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam.”
The decision brings about parity and equal treatment of polygynous marriages under our law and will ensure that the same benefit and protection is accorded to women married to the same husband in polygynous marriages under Islamic Law.