Series | Week 24
Title: Can You Disinherit Your Family? What Does the Law Say?
Many people assume that their property will automatically go to their spouse, children, or closest relatives when they die. Others fear that the law does not allow them to exclude specific family members from benefiting from their estate. This week, we explore a crucial estate-planning question: Can you legally disinherit your family in Botswana?
1. The Principle of Testamentary Freedom
Botswana law recognises testamentary freedom, meaning every person of sound mind has the legal right to decide how their property should be distributed after their death.
Section 5 of the Wills Act (Cap 31:02) makes it clear that any person aged 16 or above, and of sound mind, may make a will “disposing of all or any of his property”.
This means you may lawfully choose to exclude certain family members—provided the will meets all legal requirements.
However, testamentary freedom operates within boundaries. When it comes to spouses and children, certain rules exist to protect vulnerable dependants.
Rules Around Disinheriting a Spouse
In Botswana, while you may state in your will that your spouse should not inherit, the law still provides important protections, depending on your marital system.
Marriage in Community of Property
If you are married in community of property, the joint estate is owned equally by both spouses.
You cannot give away or disinherit your spouse’s 50% share in the joint estate. You can only distribute your half.
Disinheriting a spouse in this system is therefore limited in effect.
Marriage Out of Community of Property
If you are married out of community of property, you may legally exclude your spouse from your will. The estate will be distributed according to your written wishes.
However, the spouse may still have:
A common-law maintenance claim if they were financially dependent on you.
A potential claim for reasonable provision to prevent destitution, which courts may consider under dependants’ maintenance principles.
Customary or Religious Marriages
Customary marriages recognised in Botswana also entitle the surviving spouse to certain rights, especially where the marriage created communal family property.
While you can attempt to disinherit the spouse, the court may still intervene if:
The spouse is left without means of support, or
Customary property is improperly allocated.
Key Point:
You can disinherit a spouse, but the law provides significant safeguards—especially where maintenance or marital property rights are involved.
Disinheriting Adult Children
Adult children (18 years or above) do not have an automatic legal right to inherit from their parents under Botswana law.
Testamentary Freedom Applies
You may lawfully exclude an adult child if that is your wish. Courts generally do not interfere, as adult children are not considered legal dependants.
Reasons for Disinheriting Adult Children
Parents commonly disinherit adult children due to:
Long-term estrangement
Conflicts over property or behaviour
Prior financial support during the parent’s lifetime
Distribution preferences in blended families
You are not required to explain your reasons, but doing so in a Letter of Wishes can reduce disputes.
Key Point:
You may freely disinherit an adult child, provided your will is properly drafted.
Disinheriting Minor Children
This is where the law becomes strict.
Botswana’s legal and common-law principles strongly protect minor children (under 18 years).
You Cannot Disinherit a Minor Child Completely
Even though you may express in your will that a minor child should not inherit, the courts are unlikely to allow a child to be left destitute.
Under long-standing common-law and guardianship principles:
A parent has a duty of support toward minor children.
The court, as upper guardian of all minors, can intervene where a will fails to make provision for them.
What the Courts Usually Do
If a will disinherits a minor child:
The child (through a guardian) may bring a maintenance claim against the estate.
The court may allocate funds from the estate to cover education, housing, and livelihood until the child turns 18.
This does not necessarily entitle the child to inheritance, but ensures financial support.
Using Trusts Instead of Direct Inheritance
Some parents avoid direct inheritance by placing assets in a trust for the child’s benefit—allowing control while still meeting the duty of support.
Key Point:
While you may attempt to exclude a minor child, the law will not allow them to be left without maintenance. Absolute disinheritance is almost impossible.
How to Safely and Legally Disinherit Someone
Use clear wording that expressly excludes the person.
Ensure your will meets all requirements under the Wills Act.
Keep the will updated as family and assets change.
Record your reasons in a separate Letter of Wishes.
Consider trusts for vulnerable or irresponsible heirs.
Seek professional drafting to avoid technical invalidity.
Conclusion: Yes, You Can Disinherit—But There Are Limits
Botswana law allows you to decide who benefits from your estate.
You can disinherit spouses, adult children, and in limited cases even minor children—but only within the boundaries set by the Wills Act, marital property rules, and the duty of support. The next article we will look at Can a Trust Own Land or Cattle? Understanding Trust Property– Practical guidance on what assets can be placed into a trust and how to transfer them.
