Can you disinherit a child in South Africa?

People ask this question for two very different reasons. Some want to leave a child out and want to know whether they can. Others have been left out and want to know whether they have any recourse. The answer is the same for both and it sits in two halves.

Yes, you can disinherit a child. And no, that does not end their claim on your estate if they depended on you.

Freedom of testation

South African law gives a testator considerable freedom. You may leave your property to whomever you choose, in whatever proportions, and you are under no obligation to treat your children equally or to provide for them at all in your will. Some legal systems reserve a fixed portion for children. Ours does not.

A court will not rewrite a will because it thinks the distribution is unfair. Unfairness alone is not a ground for attacking a will, which surprises families who arrive expecting a judge to correct what a parent did.

What limits the freedom is not a share reserved for children. It is the fact that a will disposes of what is left after the estate's debts are paid, and one of those debts may be a claim for maintenance.

The maintenance claim

A parent's duty to support a dependent child does not end at death. Where a child was dependent on the deceased, the child has a claim for maintenance against the estate, founded on that duty of support rather than on anything in the will.

The crucial feature is where it ranks. It is a debt of the estate. Debts are paid before heirs and legatees receive anything. So a will that leaves everything to a new spouse, a charity or one favoured child does not defeat the claim; the claim is settled out of the estate first, and the beneficiaries take what remains.

This is why the answer to "can I cut my child out" is properly "you can leave them nothing under the will, and they may still be paid".

Our guide on claiming maintenance from a deceased estate sets out how the claim is lodged with the executor.

What the claim depends on

The claim is not automatic and it is not a share. It is maintenance, so it depends on need.

The questions are, broadly: was the child in fact dependent on the deceased; are they able to support themselves; what are their reasonable needs; what other means do they have, including support from the other parent; and what can the estate actually afford.

That produces some results people do not expect.

A minor child will almost always have a claim, because minors are by definition dependent.

An adult child may have one, but does not have one merely by being a child. An adult in full-time employment, able to support themselves, generally has no claim regardless of how the will reads. An adult child studying, or with a disability that prevents self-support, is in a different position entirely, and a severely disabled adult child may have a claim lasting for life.

A wealthy child may have no claim even as a minor, because the claim is for maintenance rather than inheritance.

A small estate may be unable to pay the claims made against it in full, in which case they abate proportionally along with other claims of the same rank.

Spouses and life partners

A child's claim is not the only one that survives a will.

A surviving spouse who is not adequately provided for has a claim for reasonable maintenance under the Maintenance of Surviving Spouses Act 27 of 1990, which works in much the same way: it is a claim against the estate rather than a share of it, and it depends on need and on the estate's means.

Since Bwanya v Master of the High Court (2021), that protection extends to a survivor of a permanent life partnership in which the partners had undertaken reciprocal duties of support. Our guide on whether living together makes you married sets out what that judgment did and did not change.

Where a spouse was married in community of property, a further point precedes all of this: half the joint estate already belongs to the survivor. It is not the deceased's to leave to anybody.

If you are the one doing the disinheriting

If you have decided to leave a child out, do it in a way that survives.

Say so expressly. A will that simply omits a child invites an argument that the omission was a mistake. A clause stating that you are aware of the child and have deliberately made no provision closes that off.

Do not explain at length in the will. A paragraph of grievance in a will becomes a public document and is often the very thing that motivates litigation. Keep the will neutral and put any explanation in a separate letter.

Deal with the maintenance exposure honestly. If the child is a dependent minor, disinheriting them under the will does not remove the estate's liability. Life cover payable to a named beneficiary outside the estate, or a testamentary trust properly funded, is the practical way to provide for that without the outcome you are trying to avoid.

Get evidence of capacity. Disinheriting a child is the single most common trigger for an attack on a will on the grounds of mental capacity or undue influence. A note from a doctor on the day of signing, or a will drawn by an attorney who records their observations, is worth a great deal later. Our will validity checker covers the formalities, which are the other ground on which wills fail.

Review it after every life event. A will disinheriting a child, drawn twenty years ago in the middle of an estrangement that has since healed, is a document nobody wants read out.

If you have been left out

Establish whether you were dependent. This is the threshold question and it decides everything else.

Lodge the claim with the executor. Maintenance claims are lodged as claims against the estate, and the executor deals with them alongside other creditors. Do it early, because once the liquidation and distribution account has lain for inspection and the estate has been distributed, recovery becomes far harder.

Watch the account. The liquidation and distribution account lies open for inspection for a period, and that is the window in which to object. Our guide on how long it takes to wind up an estate sets out where in the process that falls.

Consider whether the will itself is attackable. That is a separate question from maintenance, and it turns on formalities, capacity or undue influence rather than on fairness. Our guide on contesting a will covers those grounds.

Disinheriting by omission is not the same as by design

There is a practical trap that has nothing to do with the law of maintenance.

A great many children are disinherited by accident rather than by decision, because the will was never updated. A will made before a child was born, or before a second family, or during a period of estrangement that later ended, does exactly what it says. The Master does not ask whether it reflects current intentions.

Two mechanisms compound it. Assets that pass outside the estate ignore the will entirely: a retirement fund death benefit is distributed by the fund's trustees under section 37C, and a life policy pays the named beneficiary directly. A parent who believes they have provided for a child in a will, while a decades-old nomination form sends the largest asset elsewhere, has achieved neither.

And divorce provides only a narrow safety net. A bequest to a former spouse is read as if they had died first, but only if you die within three months of the divorce. Live past three months without changing your will and the ex-spouse inherits exactly as written, which is a disinheritance of the children by a route nobody intended.

The remedy is unglamorous: read the will, the fund nomination and every policy beneficiary designation together, after every birth, death, marriage, divorce and estrangement.

Worked example

This example is illustrative. Johan dies leaving an estate of R2 million. His will leaves everything to his second wife. He has a 10-year-old son from his first marriage, whom he supported at R4 500 a month, and a 29-year-old daughter who is an accountant.

The daughter has no maintenance claim. She is an adult who can support herself, and being left out of a will is not by itself a legal wrong.

The son does. His claim is for reasonable maintenance until he can support himself, quantified on his needs, the other parent's ability to contribute, and what the estate can bear. It is a debt of the estate, so it is settled before the second wife receives anything as heir. On an estate of this size a claim capitalising eight or more years of support at that level is substantial, and it will materially reduce what she takes.

The second wife also has her own potential claim under the Maintenance of Surviving Spouses Act if she is not adequately provided for, which here she is.

Had Johan wanted his wife to receive the full estate, the answer was not a differently worded will. It was life cover naming his son as beneficiary, which pays outside the estate, or a testamentary trust funded to meet the maintenance obligation. Freedom of testation gave him the choice of who inherits. It never gave him the ability to leave a dependent child unprovided for at the estate's expense.