Adiation or repudiation of benefits in terms of a will

The legal issue I want to address today may on the face of it sound complicated, but to all couples married in community of property it is important to be aware of this right to accept or reject the terms of a last will and testament.

What it basically boils down to is that should you be married in community of property, the surviving spouse has a choice whether he or she accepts the conditions of the last will and testament or not. The legal terms are adiation (when you accept the conditions of the will) and repudiation (when you waive the benefits you can receive in a will).

In the event of repudiation of the benefits in terms of the will you take ownership of one half of the wstate in terms of the marriage in community of property and the will is then only applicable to the half share of the estate of the first dying.

This choice that the surviving spouse of a marriage in community of property has, can only be exercised upon the death of the first dying spouse. The interesting point is that the surviving spouse has this right even if he or she was a party to the last will and testament.

I am setting the following example to illustrate how it works:

A and B are married in community of property to each other and they are the registered owners of farm C and 400 head of cattle.

A and B have a joint will in terms of which they bequeath farm C to their son and the surviving spouse inherits the 400 head of cattle.

A passed away first, now B can elect (choose) to accept the terms of the will and the inheritance, or to repudiate the benefits of the will.

Should B elect to accept the terms of the will, it will be applicable to the whole of the joint estate. In other words, the son inherits farm C and B inherits the 400 head of cattle, on the terms and conditions of the last will and testament.

Should B repudiate or renounce the terms of the will, it will only be applicable in respect of A’s share of the joint estate. In other words, B will take ownership of one half of the farm in terms of the marriage in community of property, as well as 200 head of cattle. The son will inherit one half of the farm and the other 200 head of cattle in terms of the will.

The complication with this last illustration is that a farm can only be registered in the name of one person in terms of Namibian legislation, so B and the son will have to enter into a redistribution agreement to solve this. In my article in Die Boer of February 2020 I dealt with the concept of a redistribution agreement, but in Afrikaans under the heading “Herverdelingsooreenkoms”. The article is also available my website.

Lastly: This process of election or choice is a serious decision and must be made within a reasonable period of the death of the first dying spouse. It is formally made in writing. The surviving spouse must in writing certify that he or she understands the implications of the renunciation /acceptance and that he or she has considered and realises the consequences of the choice now made. Also bear in mind that once you have made the election it is final, so you cannot change your mind at a later point in time.

Lastly, can readers please let me know if there are more topics related to deceased estates and farms that they would like me to write about.