The South
Africa common law presumption of collation (
collatio
bonorum) is alive and well.
This
presumption is rooted in the belief that a testator intended that there should
be equality in the distribution of his estate among his descendants (“children”).
Collation is the process by which the inheritance of certain descendants (heirs)of
the deceased is adjusted to consider any substantial benefits received from the
testator during his lifetime.
Collation is achieved by
adding to the inheritance the amount due by each heir. The new total shall then
be divided between all the heirs. An heir cannot, if he refuses to collate,
enforce legal remedies to claim his share of the inheritance.
Collation
further takes place by operation of law and therefore applies automatically to
your will, or if you have failed to execute a will it applies to your intestate
heirs.
If you, therefore,
intend to release any of your
descendants (heirs) from
this obligation to collate
it should be clearly
expressed in your will, by adding the following paragraph: –
“I direct that
my children need not collate any of the gifts or sums of money they received
from me during my lifetime and I remit collation so far as they are concerned.”
Or if you
specifically intend for one of your descendants (heirs) to collate it should be
clearly expressed in your will, by adding the following paragraph: –
“I record that
during my lifetime I advanced to my son, Piet Louw sums totalling in all
R300 000 (three hundred thousand rand) to enable him to qualify as an
attorney and I direct that he collates that sum with my estate before he is paid
his inheritance in terms of this will.
obliged to collate has the choice of restoring the property he has received or
permitting a deduction equal to the value he received at the time of the gift.
Considering the above it is imperative
to have your true intentions reflected in your will and to enlist the services
of an estate specialist to assist you with your estate planning and the
drafting of your will.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)