Preparing or amending your Will is often the last thing on your mind until something goes wrong. It may then be too late as you may no longer have the mental capacity or practical opportunity to express and record your true intentions regarding the distribution of your assets.
What is a Will?
A Will is a written document in which you voluntarily, and with the necessary mental capacity, set out the manner in which you wish the assets in your estate to devolve (to be distributed) amongst your elected heirs.
You must have a clear intention, without undue influence, to conclude a Will.
The Will must clearly identify who you want to administer the execution of your Will (known as the Executor) and who your heirs are. It must also be clearly expressed which heir is to inherit what or what portion of your deceased estate.
Any illegal bequest or one which is against public policy, or if your wish is expressed too vaguely and creates uncertainty, will not be enforceable.
Any person, whether born or still to be born, as well as a juristic entity, may benefit under a Will.
Who can conclude a Will?
Any person, over the age of 16 years old, can conclude a Will, provided that he or she has the mental capacity to do so at the time.
He or she must be mentally capable of appreciating the nature and effect of the document at the time of conclusion of the Will. He or she must therefore be sober and not (mentally) ill at the time of making a Will.
What happens if I die without a Will?
In the event that you pass away without having concluded a valid Will, you are deemed in law to have died ‘intestate’. This means that the Intestate Succession Act, 81 of 1987, will determine the manner in which your estate is distributed and to whom.
Normally, in such circumstances, your surviving spouse, children and direct descendants will then inherit, in specific proportions as detailed in the Intestate Succession Act.
This results in ‘benefits’ or assets being distributed in a manner that you may not have intended, or that someone benefits from your estate against your wishes.
More importantly, the intestate inheritance of any minor children, must be paid to the Guardian’s Fund, which is a section of the Master’s Office, and will be administered by the Master until your children have reached majority (18 years old).
Your surviving spouse, or their guardian, will only be able to access these funds whilst the children are minors, via application to the Master to request payment of maintenance expenses only.
This results in delays in availability of the funds and is generally a cumbersome and (can become) a frustrating process.
Formalities for a valid Will
Once you have prepared a written Will, it is a formal requirement in terms of the Wills Act that the Will must be properly signed.
The Will must be signed (or at least initialled) at the bottom of each and every page by you and two independent witnesses, as well as at the end of the Will (last page).
You and the witnesses must sign the Will in each other’s presence.
If you are (for whatever reason) unable to sign the Will yourself, you are permitted to make a mark or to authorise someone to sign it on your behalf, but in such event, all signatures must be made in the presence of a Commissioner of Oaths.
The Commissioner of Oaths must satisfy himself as to your identity and that the Will has been marked by you, or on your behalf, with your express ‘blessing’. Thereafter, he will affix a certificate to the Will confirming these facts.
Any person over the age of 14 years old and who is competent to give evidence in a Court of law, has the capacity to witness a Will.
It is important to note that none of the heirs may sign as a witness to your Will. This will disqualify such intended heir from inheriting in terms of your Will.
Who may not inherit from me?
There are certain people who are disqualified from inheriting in terms of a Will.
These are:
- Any person who has unduly influenced the testator to give him or her a benefit under the Will;
- Any person who has intentionally or negligently caused the death of a testator;
- Any person who has led the testator into an immoral life and thus indirectly caused the latter’s death;
- Any person who has concealed the Will of a testator; and
- Any person, or the testator’s spouse, who attests to a Will as a witness or who signs a Will in the presence and by the direction of the testator, or writes out the Will or any part thereof in his own handwriting.
Please therefore ensure that none of your intended heirs (including your spouse) has any part in the preparation and signature of your Will.
The Executor
An Executor is the person you want to appoint to administer your estate after your passing.
The Executor must interpret your Will, attend to the liquidation of any assets, care for and preserve the remaining assets, protect the interests of your beneficiaries, attend to payment of all bills, debts and liabilities, liaise with and follow the procedures put in place by the Master’s Office to wind up your estate, and attend to the distribution of your estate in accordance with your express wishes as set out in your Will.
This is a very significant appointment and it is extremely important that you appoint someone who is trustworthy, honest and capable of handling the complex administration of your estate. You must also be satisfied that your heirs will have access to such person or entity, in order to be kept abreast of the winding up process.
A lay person, such as your spouse, family member or friend, can be appointed.
However, it is advisable (and preferred by the Master’s Office) that an attorney or accountant is appointed as an Executor or at least as a co-Executor.
You can therefore appoint more than one party to serve as Executor of your estate.
Normally an Executor is required to put up security to the satisfaction of the Master of the High Court, for the due fulfilment of his or her duties; unless your Will expressly determines that the Executor is exempt from doing so.
Effect of Divorce
A divorce does not affect any existing valid Will.
This means that, unless you conclude a new / updated Will, your ex-spouse may still inherit from your estate, in terms of your last dated valid Will.
However, the Wills Act, 7 of 1953, stipulates that except where you expressly provide otherwise, a bequest made to your divorced spouse will be deemed revoked if you die within three months of the date on which the divorce order is granted.
So, if you have not updated your Will and you pass away more than three months after the date of the divorce order, your spouse will inherit in terms of your pre-divorce Will.
Conclusion:
A Will is one of the most important documents that you will ever conclude, and is the most important instrument available to you to ensure that your wishes (for the benefit of your loved ones) are carried out after your passing.
Whilst this article sets out basic requirements for a valid Will, each individual’s circumstances are different and may require consideration of more complex facts, in order for a valid Will to be prepared which caters for the particular individual’s circumstances and wishes. In such event, it is essential that you obtain legal advice when you conclude your Will.
This article is for general information purposes and should not be used or relied on as legal or other professional advice. We do not accept liability for any errors or omissions nor for any loss or damage arising from reliance upon any information contained in this article. Please contact our offices on 031 202 3100 / ca****@ca************.za for specific and detailed advice on this topic and / or in respect of specific facts and circumstances.
Written by Nikki Govender
