All too often, says Grant Gunston, Senior Director of the Cape legal firm Gunstons Attorneys, a testator will draw up a will in which it is not clear what the position of a relative or a friend who has been allowed to live in a property (typically the main residence) will be once the benefactor dies. Should he/she be paying rent? Is he or she responsible for the upkeep of the property? Is the arrangement temporary, semi-permanent or lifelong?
A lack of clarity in these matters, said Gunston, can lead to claims from the other beneficiaries who, understandably, have come to feel that although they have inherited the property they are receiving little or no benefit from it because a privileged individual has been allowed to occupy it.
“In our experience when an estate is to be wound up and there are no longer senior family members to hold the family together, heirs all too easily end up at loggerheads with one another over this matter. This is a problem that could be considerably reduced by the testator giving a greater degree of clarity to the heirs’ wishes (and of course putting them in writing).
In one case, said Gunston, two surviving children were left three rent-earning properties – on the understanding that they would inherit these ‘equally’ and if possible hold onto them as revenue earners. However, it was not stipulated which house would go to which heir and, as one property was clearly more valuable than the other two, this led to unnecessary disputes.
In discussing their estates and wills with attorneys, said Gunston, it is important, firstly, that the benefactors do not try to rule from the grave – a flexible or alterable arrangement is usually preferable – and, secondly, that they make their wishes and intentions absolutely clear, avoiding grey areas and vagueness.
“Testators do their loved ones a favour by spelling out their wishes clearly, even though this may sometimes be uncomfortable for them.
“As in many other areas of law,” added Gunston, “if there is any disagreement among family members, mediation is a resource that can be of great value. In almost all cases it will be quicker, less expensive and will give a more desirable solution than litigation or hoping things will resolve themselves by ignoring them.”
This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. Property Wheel will accept no responsibility for any actions taken or not taken on the basis of this publication.