What is a last will and testament?
A last will and testament is a legal document that details how your estate (assets) should be divided when you pass away. It sets out the following in accordance with your own wishes:
• Who will be in charge of administering your estate and dividing your assets in terms of your will (who will act as executor). The executor will be responsible for the winding up of your estate and executing your wishes in the best possible way. For this reason it is important to nominate a person that is trustworthy and reliable enough to distribute your assets;
• The responsibilities and powers awarded to your executor;
• Who will inherit what property;
• If you have minor children: who will serve as their guardian until they become adults and how their inheritances be dealt with, for example it will be held in a Trust until they become adults, or until a stipulated time.
Why must you have a will?
By making sure that your last will and testament is in place, valid and up to date you can:
• Protect your family’s financial future and inheritance
• Protect your family against debt liabilities from your business
• Save on estate duty
• Ensure that your assets are left to the person/persons of your choice.
• Speed up the process of appointing an executor, as if you do not have a will where you nominate an executor, the Master of the High Court appoints an executor. It can take a long time to have an executor appointed and the executor who is appointed may be somebody you may not have chosen yourself or don’t know at all.
• Ensure that there are no extra and unnecessary costs.
• Avoid the situation where your family members are unhappy with how your estate is distributed, because they will know that it is being done according to your wishes.
Why should an attorney draft your will?
• It is advisable to contact your attorney to draft your will as in many cases purchasing and submitting pro forma testamentary documents are rejected by the Master of the High court. Numerous pro forma wills are not detailed or accurate enough.
• Attorneys are professionals qualified in law. An attorney can advise you on any problem which may arise with regard to your will and has the necessary knowledge and the expertise to ensure that your will is valid and complies with your wishes. As they deal with wills regularly, they can ensure that the provisions of your will is practically executable.
What happens to your estate if you die without a valid will?
• If you die without leaving a valid will, your estate will be distributed according to the provisions of the Intestate Succession Act, Act 81 of 1987. The provision of this Act is generally fair and ensures that your possessions are transferred to your spouse and children.
• A person’s marital status and matrimonial property system will affect how the property will devolve. However if a person is married in community of property, their estate would be jointly shared by the surviving spouse. In other words, the surviving spouse automatically inherits half and the other dependants’ share will be calculated in accordance to the Act. There have been many circumstances where persons have died intestate and family members could not be traced. In these instances, the estate falls to the State.
Who can make a will and what is the requirements (formalities)?
• Any person aged 16 and over is competent to make a will.
• A person who is mentally challenged or who cannot appreciate the consequences of their action are disqualified to make a will by the Act.
• All testamentary documents must be in writing – typed, printed or handwritten.
• The will must be signed (not only initialled) by the testator/testatrix at the bottom of each page and at the end of the will on the last page.
• In the event where two persons decide to make a joint will, both parties must sign the will as per the paragraph above.
• The signature must be witnessed by two or more witnesses who are sound of mind and aged 14 and over and they too must sign the will in the presence of the testator/testatrix. According to the Act, only the last page need be signed by the witnesses
• No witness may be a beneficiary to ensure that the testator/testatrix (the person who makes the will) was not under duress when it was drafted and to eliminate fraud.
• Any mark, including a cross or a thumbprint will be considered a will if the testator/testatrix cannot sign the will by signature.
• If a person cannot physically sign the will by themselves, he/she may be assisted by a commissioner of oaths who has fulfilled his requirements in satisfying the authenticity and binding authority on the testator/testatrix.
• The date and place where the will is signed must be reflected on the last page at the end of the will.
• In the event where the testator/testatrix wants to amend the will, the amendments or codicil must be signed by him/her and two witnesses.
• There are, of course, persons who are automatically disqualified from making a will or benefiting from one. These include: persons who sign witness to the will; persons who draft on behalf of another; a person proven to have unduly influenced a testator and a person who intentionally contributed towards the unlawful death of a testator/testatrix.
• Be organised. Keep a list of your assets, policies and related statements, as well as Birth Certificates, Marriage Certificates, Antenuptial Contracts, Title Deeds and your Will in a safe place.
• It will assist your family and executor in the administration of your estate.
• Every person’s situation is unique and the advice given to one person will not necessarily help another person. It is therefore advisable to contact a lawyer to assist you in drafting your will that will best suit your situation.
• You should amend your will when something big happens in your life, for example when you buy a property, when you get married or when you have children.
By Suné Smit (B.Comm, LL.B, AIPSA Ins. Law)