My grandfather left me his estate in the rural areas. The issues is that his will is not written but is verbal - all family members are well aware of this will. Now that he has passed away his children (my uncles) are denying this and want to have a share over the estate he has left for me. I have many witnesses ranging from family members to community that are well aware of this fact. Can witnesses be used to prove the will OR is there an approach that I can follow to prove this in court. How does one go about proving such?
Province: Eastern Cape
Spoke to lawyers and no good advise
Welcome, thank you for the opportunity to address your question.If no written and validly executed will exists, it is immaterial as to what the deceased is reported to have said and unfortunately the legal position is that the estate will be distributed in terms of the rules of intestate succession, in terms of which it will be divided up between his spouse and children. You cannot create a physical document from testimony; even if it is very credible.
Grandchildren can inherit their parent's share should that parent have predeceased the grandparent.
The only way for you to inherit a considerable portion of the estate would be with the agreement of the intestate heirs; who would need to repudiate their share.
Probably not the news you were looking for but it is important to know where you stand.
I trust that the legal information and perspective provided is helpful in assessing your position going forward. I am always happy to clarify any aspect of my answer should you so require.
Thanks for the response. So the law will not listen to any other compelling verbal evidence if there is no written will.
I just feel I have a strong evidence to show that my grandfather choose me as his heir. The below are the facts I have:
1. I have been named after this estates - this was communicated to my parents and all family members. My mother is still around and can attest to this. All experts in traditional affairs can also show that my name would not have been given to anyone who. 2. My grandfather passed on during the time where the Black Administration act was still constitutional (he passed on in 2002) and knew that this would protect my interest. There was no need at the time to do a will. 3 I have witnesses from family to community that are well aware if this fact and can testify to the fact.
Could the above weight anything in court?
The further information provided makes this a more difficult issue.
Under the Wills Act and the Black Administration Act, there was a distinction as to what property an indigenous person could dispose of by testament and what property would compulsory be subject to customary succession practice.
In 1994, with the advent of the new constitution, the 'first born" and "male" dictates of the customary intestate secession practice ceased to be effectively enforcible and inevitably the Black Administration Act was repealed a while later.
What this means is that as your grandfather passed away before 2005 when the secession provisions where repealed, and as he died without a valid will, his estate would have still been subject to customary intestate succession, but provided that no heir may be excluded based on the "first born" or "male only" dictates of customary secession. In short it would result in a very similar position as for the rules of intestate secession discussed above.
Even if the Black Administration Act was in force, if your grandfather wanted his estate to go to any person outside of customary intestate succession, he would have had to have executed a valid will.
It is a pity that the Black Administration Act was left on the books for so long after 1994 as it created much confusion.
I trust that the legal information and perspective provided is helpful in assessing your position going forward. I am always happy to clarify any aspect of my answer should you so require.Best regards,
B.Com LLB Registered Corporate lawywer
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