The Power of having A WILL

What is a Will?

A WILL or TESTAMENT is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death and the executor to manage the estate until its final distribution. A Will primarily allows one to direct how their belongings such as bank balances, property, or prized possessions, or how should be distributed, this includes having a business or investments, a will can specify who will receive those assets.

Who should have a Will?

Any person of the age of sixteen years or older may make a Will, unless he or she is mentally incapable to appreciate the nature of making a Will. Also you do not need to be a millionaire to draft a Will. Anyone can draft a Will as long as the person wants to live a guideline of how he or she wishes to have their assets distributed after their passing. Furthermore, having a Will is not only about money and valuable assets, it could be about how things should continue to happen after your death, for example, as to who should take care or be a legal guardian of your minor children.

What governs the creation of Wills in South Africa and the Requirements for drafting a valid will?

In South Africa, Wills are governed by the Wills Act 7 of 1953. Section 2(1)(a) of the Wills Act set out the basic requirements that ensure that you have a valid Will. The requirements are as follows for a valid Will:

  • It must be in writing.
  • The Will must be signed at the end of each and every page by the testator and two witnesses who are above the age of 18 years.
  • The testator and the two witnesses must sign the Will in the presence of each other. It should be noted that a person who signs as a witness is disqualified from receiving any benefit from the Will.
  • If the Will consists of more than one page, each page must be signed by the testator and by two witnesses anywhere on the page.
  • If the testator is not able to sign the Will (for example where s/he cannot read or write), someone can sign the Will on his/her behalf or the testator can sign the Will by the making of a mark (like a thumbprint or a cross). In this instance, a commissioner of oaths must also be present when the testator makes the mark or someone else signs on behalf of the testator.

Any provision in the Will may not be against the public interest or good morals.

The Purpose and Importance of having a will

Writing a Will is important especially if you have children or other family who depend on you financially, or if you want to leave something to people outside your immediate family. A will makes it much easier for your family or friends to sort everything out in the unfortunate event of your death.

If a person dies without a will his/her property will be distributed terms of the laws of intestate succession. Without a will the process can be more time consuming and stressful. Furthermore everything you own will be shared out in a standard way defined by the law which isn’t always the way you might want it to be. Remember a Will can be amended any time you wish to for example if you want to include more beneficiaries or exclude some.

Which documents do you need when drawing up a will?

You need the following documents to draw up a Will:

  • The name and identification details of the executor of your estate. The name and ID number of your spouse and how you are married (in community of property, out of community of property).
  • Copy of a marriage certificate. Did you divorce recently? If so, a copy of the decree of divorce and settlement agreement will be required.
  • The full names and ID numbers of all your children including adopted and stepchildren, you wish to benefit from your Will.
  • The names and ID numbers of any grandchildren you would like included.
  • The name and contact details of a guardian in case you have minor children.
  • Copies of title deeds in respect of immovable properties in South Africa or mortgage bonds thereof.
  • Copies of insurance policies, such as endowment policies, life policies, credit life policies.
  • An inventory of liabilities

What should your family know about your will?

Your family should know the following:

  • Who you have nominated as your executor
  • That your executor should be notified immediately in the event of your death
  • The whereabouts of your Will
  • Your wishes regarding funeral arrangements

Conclusion

A Will can automatically become invalid if those requirements set out in the Act are not met. It is also important that you update the document when there are new changes in your life for example births, deaths, marriages, and divorces in the family. Having an outdated Will is almost just as dangerous as not having a Will at all. If a person fails to update his/her Will, people with whom she/he no longer have relationships with may inherit from his/her deceased estate. The testator must inform a reliable person of the whereabouts of his/her Will or place it in a safe place where it can be easily be found after his/her death.

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