Answer to a question from a reader

Can the surviving spouse change the joint will created with the deceased?

The short answer

No, both spouses need to agree to change the joint will and this is no longer possible if one has passed away.

The whole question

Dear Athalie

My aunt and her husband made a will where they agreed that when one of them died, the other would inherit everything, and when the surviving spouse died, their legally adopted grandchild would inherit everything. My aunt has since passed away, meaning my uncle inherited everything. He is now considering marrying his new partner, who is pregnant. He is not taking good care of his 11-year-old grandson even though he receives a social grant to do so, which he rather spends on beer.

The long answer

If this was a joint will made by your aunt and her husband, her husband is not allowed to change it without her permission. As she is no longer alive, she cannot give such permission and therefore the grandson must inherit everything when the husband dies, as set out in the joint will.

But having said this, our law also requires a parent to maintain their children, so it may be possible for the husband’s minor child to make a claim against the deceased estate of his father, which will be inherited by the grandson in terms of the joint will.

In terms of the Maintenance of Surviving Spouses Act, it may also be possible for the new wife to make a claim against the deceased estate of her husband. Here the court will take into account whether or not the wife is able to maintain herself from her own earnings, the size of the estate and how long the new wife has been married to the deceased, before coming to a decision.

In terms of what can be done to assist the 11-year-old grandchild who is being neglected: the law is clear that children have constitutional rights. Section 28 of the Bill of Rights in the Constitution says that “every child has the right to basic nutrition, shelter, health care and social services, as well as the right to be protected from maltreatment, neglect, abuse or degradation”.

Perhaps you could start by finding out from the grandson whether he is unhappy living at home in the present circumstances and what he would like to be done. If it’s possible to call a family meeting with your aunt’s husband, that might also be worthwhile: the family could put it to him that he is neglecting his grandson and that unless he stops this neglect (and stops using the child’s social grant to buy beer) the family will report him to a child welfare organisation or the Children’s Court (which is in any magistrate’s court) or the Department of Social Development.

If the neglect continues, the grandson might be better off living with another family member, if that was possible and if the grandson was in favour of it. The Children’s Act 38 of 2005 says that a child has the right to be heard about any issue that affects them and their opinions, preferences and wishes must be taken into account by a court of law.

If you reported the neglect to the authorities, a social worker would investigate and write a report as to what would be in the best interests of the child.

Although the husband is the child’s legal guardian/adoptive parent, a court could remove the grandchild if the husband was judged to be an unfit parent. If another family member was able to take the grandson in, the social worker could recommend to the Children’s Court that he be placed in the care of this family member and assist in having the social grant transferred to that family member, if that was appropriate. If no other family member could take over his care, he might be placed in a state institution, which might well be a grim alternative and not something the child would want at all.

You could also contact one of the following organisations for help and advice:

  • Child Welfare South Africa

            Tel: 087 822 1516


  •  The Cape Town Child Welfare Society

            Tel: 021 638 3127 


  •   Childline South Africa

             Toll-free: 08000 55 555

             Tel: 031 201 2059


Wishing you the best,

Answered on Aug. 2, 2022, 3:05 p.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.