Property rights after divorce and intestate death
Scenario: A consultation was held with the eldest daughter regarding her deceased mother’s estate. The daughter approached me for legal guidance regarding a family property dispute. The Master of the High Court has formally appointed her as the Executor of her late mother’s estate.
As the Master-appointed Executor, the eldest daughter holds the sole legal authority to control and protect her late mother’s 50% share of the asset. The father retains his original 50% share. The daughters have a right of occupation and cannot be legally evicted by their father.
Under South African law, the father’s claim of sole ownership is legally incorrect. Because the couple was divorced, any automatic spousal inheritance rights ended.
Because the mother died intestate (without a will), her 50% co-ownership share of the property belongs entirely to her two daughters.
Breakdown of property rights
• The Husband’s Share: The ex-husband retains his original 50% co-ownership share. He cannot claim his deceased ex-wife’s half.
• The Wife’s Share: Because she died without a will (intestate), her 50% share is distributed according to the Intestate Succession Act 81 of 1987.
• The Children’s Inheritance: Under this law, the deceased’s estate is divided equally among her descendants. The two daughters inherit 25% each of the total property.
The ownership of the house is now legally split three ways:
Ex-Husband 50% (His original share)
Daughter 1 25% (Inherited from Mother)
Daughter 2 25% (Inherited from Mother)
The father cannot sell the house or transfer it into his name without the daughters’ consent. The Deeds Office requires the signature of the deceased mother’s Executor to move her 50% share.
Living arrangements and costs
Because all three parties are now legal co-owners, the living dynamic changes significantly:
• Right of Occupation: The father has a right to live there because he owns 50%.
The daughters also have an equal right to live there because they jointly own the other 50%.
The father cannot legally evict them.
• Splitting Household Expenses: Rates, taxes, water, electricity, and general maintenance should now be divided proportionally according to ownership (50% paid by the father, and 50% split between the daughters).
What must happen next
The executor/ daughter must approach a conveyancing attorney, who must formally transfer the mother’s 50% share to each daughter (25%) through the Deeds Office.
How to resolve the co-ownership
Once the Title Deed is updated, the daughters and the father must agree on one of three options:
• Buy-Out: The father buys the daughters’ 50% share, or the daughters buy out the father’s 50% share.
• Sell the Property: All parties agree to sell the house and split the money (50% to the father, 25% to each daughter).
• The Rental Alternative: If the daughters choose to move out in the future, the father must pay them a market-related monthly rent for utilising their 50% share of the property.
• Forced Sale (Actio Communi Dividundo): If living together becomes impossible and the father refuses to buy them out or sell, the daughters can hire an attorney to approach the High Court. The court will order the house to be sold on the open market, and the proceeds will be split (50% to the father, 25% to each daughter).