Answer to a question from a reader

Can I remove a beneficiary my late wife added to her title deed?

The short answer

It depends whether she left a will, if you were married in community of property, and if you had an antenuptial contract.

The whole question

Dear Athalie

My wife recently passed away. Before she died, she appointed her niece's son as a beneficiary on her title deed but excluded our children. Is there a way to remove him and put my children's names on instead?

The long answer

If your late wife did not leave a will, the deceased estate would be distributed according to the Intestate Succession Act of 1987 in the following way: you as her surviving spouse and your children would inherit the property. If there was no surviving spouse, the children would inherit in equal shares. If there were no children, the house would be inherited by more distant blood relatives.

If you and your late wife were married in community of property, you would be entitled to 50% of her deceased estate, once all the debts were settled. The deceased estate includes the house. 

If she left a valid will nominating her niece’s son as the beneficiary of the house, he would inherit the remaining 50% of the deceased estate. (A deceased estate worth more than R250,000 is wound up by an executor, and one worth less than R250,000 is wound up by a representative who is granted a letter of authority by the Master of the High Court.)

That means that the executor or the representative would have to see to the sale of the house so that you got 50% and the niece’s son the other 50%. 

If you were married in community of property, she could not have transferred the title deed to the nephew in her lifetime without your written permission.

If you were married with an antenuptial contract, what was your wife’s property remains hers and is not shared with her husband, and vice versa, and she could leave the property to whomever she wanted. If this was the case, and the title deed has already been transferred to the nephew, he is the legal owner of the house. 

If it has not been transferred to the nephew, the deceased estate, which is administered by the Representative or Executor, must pay any debts owed and receive the Master’s permission before the property can be transferred. 

The Representative/Executor would arrange for a conveyancing attorney to transfer the title deed from your deceased wife’s name to the nephew’s name. A conveyancing attorney would have the property transferred and registered at the Deeds Office where a copy will be kept as proof of the new ownership of the house.

The nephew (known as a legatee in legal language) has a choice of whether to accept the legacy, which is called adiation in legal terms, or to reject or renounce it, which is called repudiation. 

Wikipedia says that the Wills Act lays down that if a legatee renounces a benefit, the benefit will go to the surviving spouse. If the surviving spouse does not stand to inherit, the renounced benefit will go to the descendants, or to the descendants of the descendants, unless the will indicates otherwise.

So in your case, if the nephew is willing to renounce the benefit, he would have to complete a form called “Renunciation of Benefits” to inform the Master of the High Court that he renounces the benefit. advises that if the children are minors, there are three Acts that can be used to secure benefits:

  1. The Administration of Estates Act, 1965: This act allows a child to contest a will if they have been excluded or not adequately provided for. A child can apply to the court for the alteration of a will if they believe that the will does not adequately provide for them.

  2. The Children’s Act, 2005: This act provides for the protection and care of children and also includes provisions for children who have been excluded from a will. A child can apply to the court for maintenance and support if they have been excluded from a will.

  3. The Maintenance Act, 1998: This act allows a child to claim maintenance from a deceased parent’s estate if they have been excluded from the will.

You could ask Legal Aid for advice on how to proceed. They are a means-tested organisation, which means that if your income falls below a certain level, they must assist you.

These are their contact details:

0800 110 110 (Monday to Friday 7AM - 7PM) 

079 835 7179 (Please Call Me)

Wishing you the best,

Answered on May 24, 2024, 1:06 p.m.

See more questions and answers

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.