Up until now, many people who are married in community of property have believed that if a property is left to them in a will (only one of the two spouses), it is untouchable and cannot be attached to settle outstanding debts. Allen West, chief deeds trainer in Pretoria investigated this phenomenon and had the following to report:
If certain stipulations are not set out in the will the property can be used to pay the creditors of either spouse (form part of the joint estate). So, to prevent this from happening, the testator can expressly exclude the inheritance from the community of property in his or her will or, alternatively register a fideicommissum against the title of the property.
Fideicommissum is where a property owner, transfers his/her property to another person on condition that the property will be transferred to a third party at a later stage. For example, a husband can leave the house to his wife with the pre-condition that on her death it will be passed on to their child.
In terms of the common law and the Deeds Registries Act, another way of excluding the property from community of property, is to incorporate the exclusion as a condition in the title deed. In other words, the title deed of the property needs to state that it is not subject to the parameters governing community of property.
In addition, common law also allows for a bequeathed property to be sold and the proceeds used to buy another property, which can be registered solely in the name of the recipient and thus be secured from paying off creditors. This is on condition, that the registrar of deeds is provided with documentary evidence that the land was initially excluded from the joint estate.
It was a belief founded in both common law and confirmed by both Bosman v Richter in 1853-6 C and Ex parte Bear and Sack in 1926 W 240 that the property not forming part of the joint estate will not be affected should the other spouse become insolvent. Therefore that which falls outside of these parameters cannot be claimed by creditors. However, the judgement in Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA) has overruled this belief. The court held that the property falling outside the joint estate is relevant only between the spouses (inter partes). The court further held that each spouse’s estate comprises not only his/her undivided interest in the joint estate, but also his/her separate property falling outside of the joint estate.
It therefore becomes clear, that in a will bequeathing property to a person married in community of property, any stipulations regarding property is regarded as a deal between the spouses (inter partes) and has no legal ramifications in the case of insolvency. We therefore recommend that an antenuptial contract excluding a marriage in community of property is executed by couples prior to marriage .
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