Answer to a question from a reader

If the deceased was married in community of property, can they leave their estate to someone else?

The short answer

No, the deceased cannot leave the estate to someone else without their spouse's permission.

The whole question

Dear Athalie

My late grandfather wrote in his will that the house my mother and I live in should go to my uncle, although the property was never transferred to his name. My uncle claims that the house belongs to him but my grandmother disputes this because she and my grandfather were married in community of property. My grandmother wants to amend the clause to make it a family house but my uncle refuses to hand over the will.

Who is the lawful owner of the house?

The long answer

In a marriage in community of property, both spouses own everything in equal shares. This means that your grandfather cannot leave his house to your uncle without your grandmother’s permission. As the surviving spouse, she has a claim to 50% of the joint estate, and then the remaining 50% can be distributed to the nominated beneficiaries of the will; in this case, your uncle.

When one of the spouses dies in a community of property marriage, the joint estate is dissolved as such – it can’t have only one owner. This process involves the executor of the estate first settling all the debts that are equally shared between the spouses. These include contractual debt, mortgage bonds, loans and credit cards. Once all the liabilities have been settled, the surviving spouse (your grandmother, in this case) has a claim for 50% of whatever is left of the joint estate, and the other beneficiary has a claim for the remaining 50%.

A will can be amended after the death of the person who made the will (the testator) but any changes to a will have to be made within two years of the date of death of the testator. If your grandfather died many years ago, it will not be possible to amend the will now. The other condition for amending a will is that if a beneficiary would be left worse off by the amendment, that beneficiary must agree to the change before it can be made. 

Wishing you the best,

Answered on July 22, 2021, 11:18 a.m.

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