CAN YOU DISINHERIT SOMEONE IN SOUTH AFRICA? Know Your Rights Before You Write Your Will

When writing a Last Will and Testament, most people want to decide for themselves who will inherit their money, property and belongings. South African law generally respects this right, known as freedom of testation.

However, this freedom is not unlimited. Certain laws, court decisions and legal obligations can affect what happens to your estate after you die, even if your Will clearly states what you want.

Understanding these rules while you are still alive can help you plan your estate properly, protect your family’s interests and reduce the risk of disputes after your death.

1. Public Policy, Fairness and the Law

You generally have the right to decide who inherits your assets and how much each person receives. You may even choose to leave someone out of your Will.

However, your Will cannot lawfully require something illegal or contain conditions that a court finds contrary to public policy. A clause that is too vague to understand or carry out may also be unenforceable.

South African courts must consider constitutional values, including equality and the prohibition of unfair discrimination, when deciding whether certain provisions in a Will can be enforced.

For example, in the Constitutional Court case King NO v De Jager (2021), a discriminatory provision in a Will that favoured male descendants over female descendants was declared inconsistent with the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act.

This does not mean that everyone must inherit equally. You can generally leave different amounts to different beneficiaries, or decide not to leave anything to a particular person. However, a provision that unlawfully discriminates against someone may be challenged.

What this means for you: Make your wishes clear and ensure that the conditions in your Will are lawful. If you want to impose unusual restrictions on an inheritance, get proper legal advice before signing your Will.

2. Leaving a Farm or Agricultural Land to Your Children

If you own a farm and want to leave it to two or more children, there is an important legal restriction you need to understand.

The Subdivision of Agricultural Land Act 70 of 1970 restricts subdividing certain agricultural land and creating new undivided ownership shares in that land without the Minister’s required written consent.

This can cause problems even if you do not intend to divide the farm into separate physical portions. Leaving the farm to several children as co-owners may still raise legal difficulties.

The position is particularly important because the 1998 Act intended to repeal the existing legislation has not been brought into operation. The newer Preservation and Development of Agricultural Land Act 39 of 2024 also remained awaiting proclamation of its commencement as at 15 October 2026. The existing 1970 Act therefore remains relevant.

Could the farm have to be sold?

Yes, in certain circumstances.

Under section 5 of the 1970 Act, if the required consent for the subdivision or vesting of shares is refused and no alternative arrangement is reached that receives the necessary consent, the executor must realise the affected land or share and distribute the net proceeds according to the Will or the rules of intestate succession.

In practical terms, this can mean that the farm has to be sold and the proceeds divided, rather than the children inheriting it jointly as originally intended.

The Act contains exclusions, and the outcome depends on the property and the proposed transfer. Before leaving agricultural land to several beneficiaries, consult a suitably qualified property or estate-planning professional to determine what arrangements are legally possible.

3. Government and Other Retirement-Fund Benefits

Many people assume that their Will determines who receives their pension when they die. This is not necessarily the case.

Retirement-fund death benefits are generally dealt with under the legislation and rules governing the particular fund. Some benefits are paid directly to beneficiaries or dependants, rather than forming part of the deceased estate. Other benefits may be payable to the estate in particular circumstances.

For retirement funds governed by section 37C of the Pension Funds Act 24 of 1956, the fund must follow the statutory process for dealing with death benefits. This can involve investigating the deceased member’s dependants and considering nominated beneficiaries when deciding how the benefit should be distributed.

A nomination form is important, but it does not automatically mean that the nominated person will receive the entire benefit.

The Government Employees Pension Fund (GEPF), for example, operates under its own legislation and rules. Its death benefits must be considered under those rules rather than assuming that the process is identical to that of every other retirement fund. Depending on the circumstances, a death-in-service benefit may be payable to beneficiaries or, if there are no beneficiaries, to the deceased member’s estate.

What this means for you: Do not rely on your Will alone to determine who receives your retirement benefits. Check the rules of your particular fund and make sure your applicable nomination forms are up to date. Also remember that a pension benefit paid into your deceased estate may be dealt with differently from a benefit paid directly to a beneficiary.

4. Protecting Your Surviving Spouse

South African law provides some protection for a surviving husband or wife who cannot adequately support themselves after their spouse dies.

Under the Maintenance of Surviving Spouses Act 27 of 1990, a surviving spouse may claim reasonable maintenance from the deceased spouse’s estate until the survivor dies or remarries, to the extent that the survivor cannot provide for those needs from their own means and earnings.

This is a maintenance claim, not an automatic right to inherit a particular portion of the estate.

For example, you may leave most or all of your assets to your children in your Will. However, if your surviving spouse cannot meet their reasonable maintenance needs from their own resources, they may still have a claim against your estate.

How is the maintenance claim decided?

The relevant factors include:

Other relevant circumstances may also be considered.

The claim is not unlimited, and a surviving spouse does not automatically receive maintenance simply because they were left out of the Will. Their financial circumstances and reasonable needs must be assessed against the available estate.

5. Children’s Maintenance Claims

Another important limitation is a parent’s legal duty to maintain and support their children.

If you die while you still have a legal duty to maintain a child, that obligation does not necessarily disappear when you die. A claim for reasonable maintenance may be made against your deceased estate, depending on the circumstances.

This is particularly important where a child is still dependent on you and cannot support themselves.

Such a claim is different from an inheritance. A child does not automatically acquire a right to an equal share of your estate simply because they are your child. However, a valid maintenance obligation may have to be taken into account when your estate is administered.

This means that even if your Will does not leave an inheritance to a child who is still legally entitled to maintenance, the estate may nevertheless have to provide for that child’s reasonable maintenance.

6. Why Proper Estate Planning Matters

A well-drafted Will is one of the best ways to make your wishes clear and help your family avoid unnecessary disputes. However, signing a Will is not a guarantee that every instruction will be carried out exactly as written.

South African law recognises your right to decide who should inherit your property, but that right operates alongside statutory restrictions, lawful claims against your estate and the rules governing certain assets.

Before finalising your Will, consider whether you own agricultural land, belong to a retirement fund, have a surviving spouse who may require maintenance, or have children who still depend on you financially.

The bottom line: You generally have considerable freedom to decide who inherits your assets, but you cannot use a Will to override every law or legal obligation. Proper planning and appropriate legal advice can help ensure that your wishes are carried out as far as the law allows.

A particular estate or Will may require individual legal advice because the outcome depends on the facts and applicable fund or property rules. If you require any assistance, do not hesitate to contact us.