In South African law, a principle known as collatio assumes that parents intend for their children to inherit equally. This rule requires all descendants, whether inheriting through a will or intestate succession, to account for certain assets they have received from the deceased during their lifetime before they can inherit.
Under this rule, any assets given to a child as part of their inheritance, or resources that helped them establish a business or pursue a profession (such as education costs), must be accounted for. Money loaned or advanced to an heir must also be included.
However, assets used for a child’s everyday maintenance and upbringing are excluded, it is considered as simple gifts given in proportion to the deceased’s wealth. The underlying principle is that anything given to a descendant that benefits them more than others qualifies for collatio.
This rule only applies to heirs who have accepted their inheritance (without being liable for the deceased’s debts) and does not affect those who refuse the inheritance.
Any assets accounted for under collatio do not become part of the estate’s total value but are only noted in the distribution account. As a result, they do not increase the estate’s overall worth.
Only the value of the asset at the time of transfer is considered for collatio. This value is then equally divided among all heirs. For example, if a farm was gifted to a son, only its value at the time of gifting is considered in the estate.
It’s important to note that collatio only applies if the testator (the person making the will) does not expressly exclude it. If the testator wishes to avoid having any assets given during their lifetime brought back into the estate, this exclusion must be stated clearly in the will. Otherwise, collatio applies by default.
Since this rule can cause disputes among heirs and lead to administrative complications, most modern wills specifically exclude collatio. Due to this legal principle not being widely known, there is also debate regarding whether executors are responsible for explaining it to heirs if it has not been excluded from the will.