Can You Legally Disinherit Your Children?

Issue: Are you allowed to exclude your children from your last will and testament?

Here’s a question from Kgotso:

I have three adult children from a previous marriage. Over the past few years, my relationship with them has completely broken down. They blame me for the end of my marriage to their mother and have had no contact with me despite my attempts to reconcile. None of them even visited me during a serious illness I recently endured.

I have since rebuilt my life. My new partner has been my main source of emotional and practical support, and I would prefer to leave my property to her alone. Am I legally allowed to disinherit my children? If I do, could they still claim anything from my estate? I am concerned that they might challenge my will after my death, especially if I exclude them entirely.

From The Legal Desk

Thank you for your question, Kgotso. I cannot imagine ever disinheriting my children. From the moment they were born, I felt that my entire life became about leaving something behind for them. But that’s just my personal view. I recognise and respect that others, for their own reasons, may feel differently. For them, disinheriting their children may well be the right decision. So to answer your question, let’s take a look at the legals…

The short answer to your question is “yes, you can disinherit your children.” South African law recognises the principle of freedom of testation, which allows an individual to dispose of their estate as they see fit and to choose their beneficiaries freely. This includes the legal right to disinherit one’s children entirely. Courts generally uphold this principle and are bound to enforce the terms of a valid will in accordance with the maxim voluntas testatoris servanda est (the will of the testator must be complied with).

Under common law, a testator is under no obligation to benefit their children, adopted children, or other family members in a will. A parent may lawfully exclude some or all of their children from inheriting and may even discriminate between them. This position was illustrated in Schnetler v Die Meester, where the court upheld a will in which the testator expressly stated that he had “forgotten” his children because they had forgotten him.¹

However, freedom of testation is not absolute. The most significant limitation arises from the common law duty of maintenance owed by parents to their children. This duty does not terminate upon the death of the parent but survives as a debt against the deceased estate.

Minor children are entitled to claim maintenance and education from their deceased parent’s estate, regardless of whether they have been disinherited. The claim is based on actual need and continues until the child becomes self-supporting. In addition, major children who are unable to support themselves adequately may also claim maintenance from the estate. During the administration of an estate, maintenance claims rank after the claims of ordinary creditors but take precedence over inheritances due to heirs and legatees. As a result, a child (even as an adult) who is expressly excluded from a will may still receive financial support from the estate if they qualify as a dependant.

The position under customary law has also evolved. Historically, customary law succession was dominated by the rule of male primogeniture, which often excluded female children and younger sons. These rules were reinforced by section 23 of the Black Administration Act,² which limited freedom of testation for black South Africans. Following the Constitutional Court’s decision in Bhe v Magistrate, Khayelitsha,³ these restrictions were declared unconstitutional. The Reform of Customary Law of Succession Act⁴ now places persons living under customary law on the same footing as those governed by the common law. They enjoy freedom of testation and may regulate the distribution of their estates by will, subject to the same maintenance obligations owed to dependants.

Beyond maintenance, freedom of testation is constrained by common law, statutory, and constitutional considerations. Courts will not enforce testamentary provisions that are unlawful, too vague, or contrary to public policy (contra bonos mores). In the constitutional era, public policy is informed by values such as human dignity and equality. While a parent may generally exclude a child for personal reasons, clauses that result in unfair discrimination or violate constitutional norms may be struck down.

If a parent dies intestate, the Intestate Succession Act⁵ governs the distribution of the estate. In such cases, children inherit as descendants by operation of law and cannot be disinherited through choice. They may only be excluded if they are legally unworthy to inherit, for example where a beneficiary unlawfully caused the death of the deceased or their coniunctissimi, in accordance with the principle de bloedige hand neemt geen erf. Even then, the descendants of the disqualified heir may inherit by representation.

I hope you work it out with your children. However, if you don’t, then rest assured the law strongly protects freedom of testation and allows you to disinherit them. However, this freedom is tempered by the enduring duty of maintenance, which ensures that dependent children are not left destitute. Hence, while you may choose who inherits their estate, you cannot evade the legal obligation to provide for their basic needs from the assets they leave behind. All the best.