Steps to ensure clarity about identity of beneficiaries
Avoid confusion over name changes
Elon Musk’s 18-year-old transgender daughter was recently granted permission to change her name in accordance with her new gender identity, from Xavier Alexander Musk to Vivienne Jenna Wilson. In addition, she no longer wishes to be related to her biological father.
From a planning perspective it leaves the question – how will a decision like this impact inheritance and how would this play out in South Africa?
In South Africa the process to change your name or gender is relatively easy and can take up to four months. When planning your estate, however, the testator needs to be very clear about the identity of the beneficiaries to avoid any confusion, which could cause a dispute.
There are some instances where family members have the same names, or the spelling of the name is different in the will to what it is in the person’s identity document, causing reason for a legal dispute.
This can prolong the already very painful process of winding up a deceased’s estate.
Therefore, stating the full name as they appear in the ID document of the beneficiary is a crucial aspect of ensuring the smooth execution process of a valid estate plan. It can also be beneficial to describe the person in the document, for instance, using the term ‘“daughter Susan”, or “my cousin Patrick”.
If a previous name of the beneficiary is reflected in the estate plan of the deceased, there are ways to prove that the person referred to is the legal recipient of the inheritance or assets. This can be done by using an old identity document or birth certificate or by taking the route of a legally signed affidavit. As an example, if your name has changed, but you have a birth certificate that said you were Thuli, and now you’re Tshepo, the identity document will prove that you are the same person.
The constitution protects the rights of all people and promotes protection from unfair discrimination based on gender and religion.
In South Africa we’re in a progressive legal environment that directly affects wills and estate plans.
With regards to inheritance, it is now up to Musk to decide whether his daughter is to inherit from his estate. If a specific bequest is made in her favour, then the drafter of the will must ensure that she is clearly identifiable in the will through, for example, her name and unique identification number.
As an adviser, it’s important to understand the wishes of the testator properly to ensure that the will reflects those wishes correctly. As the testator, it’s important to keep your estate plan updated. It’s best not to try and do it yourself as small details may cause massive problems.
South Africans are encouraged to have a fiduciary practitioner or estate planner assist to make sure that you have covered everything.
Review your estate plan as often as your personal circumstances change. Ask yourself what has changed in your life? Maybe you wanted a family member to benefit from your estate, but they have since passed, or gotten very ill, in which case their inheritance might need to be put into a trust.