By Winston Miller Attorneys, Johannesburg, South Africa
It is a well known principle of South African law that a pactum successorium, being an agreement by a testator not to revoke a will, is invalid.
Any provision in an agreement in terms of which a person purports to regulate how his or her assets would be dealt with after death will not be binding. The principle is simply that a person should be entitled to determine how or to whom property should be left on death, and to revoke a will or other testamentary document at any time.
One important exception to this principle is the execution of a binding notarially executed ante-nuptial contract (or for those not familiar with the term, a ‘prenup’). It is common in South Africa for couples contemplating marriage to sign a prenup to avoid their assets being in community of property (the default regime in South African matrimonial law) . By concluding a properly executed ante-nuptial contract before the marriage, the marriage would be regarded, in South African terminology, as being “out of community”.
In the ante-nuptial contract, the spouses to be may provide for the devolution of property on the death of one or both of the spouses. And this would be binding. An ante-nuptial contract is not a testamentary act (a will). It need not follow the formalities prescribed by the South African Wills Act for valid wills. With a will, as noted above, the maker of the will retains the right to revoke the will by written act at any time. However if spouses to be include in the ante-nuptial contract provisions relating the devolution of a property on death the pactum successorium may only be revoked by the mutual consent of the parties
The moral of the story: ensure your spouse’s property is buttoned down in the pre-nup!!
If you have any questions or wish to consult on a matter of family law or estate planning, please feel free to contact Winston Miller Attorneys.
