Disinheritance

29/06/2022

"Behave yourself or else I will disinherit you!" Someone may have told you in joke. But what does it mean, to disinherit somene? Who can disinherit whom? And what for?   

Who is the "heir apparent" and what is a compulsory share?

The so-called heirs apparent can be disinherited. These are the children of the deceased and, if they do not inherit, their children. Non-nominal heirs are entitled to a "compulsory share", which is 1/4 of the legal share (for minor heirs it is 3/4). The testator may not shorten the mandatory share for the non-minor heirs - the exception is disinheritance.

However, the obligatory share is not a share of the estate, but only a claim for payment of a sum of money equal to the value of the obligatory share. This claim may be asserted by the heir apparent against the called heirs and legatees.


Grounds for disinheritance

Only heirs apparent may be disinherited, and then only on legal grounds, i.e. if the heir:

  • failed to provide the deceased with the necessary assistance in his/her time of need;
  • has not shown the genuine interest in the testator that he or she should have shown;
  • has been convicted of a criminal offence committed in circumstances indicative of his or her depraved character;
  • has led a permanently disorderly life.

In addition, there are two special grounds for disinheritance, the purpose of which is to protect the testator's family from the adverse consequences of the conduct of the heir apparent in the area of property. If there is a reasonable apprehension that the heir apparent heir will not leave even the obligatory share for his descendants, i.e.

  • is indebted; or
  • is acting wastefully,

these are statutory grounds for disinheritance. The condition may be fulfilled even if the heir apparent is not subject to insolvency proceedings. It is not even required that the heir has already spent a substantial part of his property, so long as there is no doubt as to his profligate character. However, these two grounds for disinheritance are subject to the condition that the testator leaves a compulsory share to the children of his disinherited descendant or their children. If, however, the heir apparent has no children, he cannot be validly disinherited on these two grounds alone.


The most common methods of disinheritance

The most common reason for disinheritance is "failure to show genuine interest". But beware! What constitutes a "genuine interest" can be tricky. For example: if the fact that a descendant did not show a genuine interest in the testator is a consequence of the testator's failure to show an interest in his or her descendant, the descendant's lack of interest cannot be regarded as a ground for disinheritance without more. Conversely, where the manner in which the descendant shows interest in the testator consistently exceeds the principles of social decency, it may, according to case-law, mean that the descendant 'does not show genuine interest'.

Another frequent reason is the heir's persistence in leading an undirected life. However, if the heir is living an undirected life as a result of ill-treatment in childhood or inadequate upbringing by the testator, he cannot be validly disinherited on this ground.


How can a testator disinherit someone?

Typically, this can be done by a written declaration of disinheritance. The same rules apply to the form of this document as to the form of the will. A declaration of disinheritance can be made, amended or revoked

  • in writing by a private instrument without witnesses in what is known as a hollographic form - the testator must draw up the instrument in his or her own hand and sign it in his or her own handwriting;
  • in writing by a private instrument in the so-called allographic form - the testator need not execute the instrument in his own hand but must sign it in his own handwriting and declare, in the presence of two witnesses present at the same time, that the instrument contains the disinheritance of his heir apparent;
  • by a public deed (notarial deed);
  • with concessions, if the conditions for this are met (urgency of the situation).

In the declaration of disinheritance, the testator must expressly state that he is disinheriting the heir apparent, i.e. excluding him from the right to the obligatory share or curtailing him in this right.

However, the disinheritance may also be made 'tacitly and equitably'. If, for example, the testator omits a heir apparent in the will, and the omission is made knowingly, and that heir has done something which fulfils the legal ground for disinheritance, which is subsequently proved in contested Court proceedings, this is also a valid disinheritance.


Tips for the end

As with a will, a declaration of disinheritance can only be made by one person at a time. For example, a joint declaration by parents to disinherit their prodigal son would be invalid.

It is not possible to disinherit someone "as a precaution" in case he or she begins to treat the testator badly or to live an unmanaged life. The reason for the disinheritance must exist at the time the testator makes the disinheritance declaration.

It is not possible to draw up a declaration of disinheritance on a computer without witnesses; lack of form would render the disinheritance invalid.