Opinion editorial by Sara Coetzee, Estate Administrator (201607)
A will is a legal document expressing your wishes as to how your estate should be liquidated and distributed. It is essential that your will complies with the legal requirements set out in the Wills Act. Once a will has been accepted by the Master of the High Court, the legality thereof can only be disputed in a South African Court of Law, which is a very costly process and a successful outcome is not guaranteed.
Any person 16 years or older, who is mentally capable of appreciating the nature and effects of his act, can make a will.
You can make a single will, even if you are married, but if you are married in community of property, you can only bequeath your undivided half share of the joint estate and your spouse will retain his or her half share thereof. Any two persons, whether single or married, can also make a joint will.
Do not attempt to draft your own will if you have no legal background in wills and estates. If you have already drafted your own will, get advice from a wills and deceased estates specialist with regard to the legal aspects of your decisions. Your will might contain conditions that are not feasible, enforceable or will cause grief to your loved ones.
In a nutshell, a properly drafted will comprises the following:
It revokes all previous wills.
This will prevent your new will from being read in conjunction with previous wills.
You can make special bequests i.e. legacies, which takes precedence over residual inheritance. The residue of your estate is whatever remains of your estate after payment of administration costs and debts as well as legacies. If you fail to name heirs for the residue of your estate or to provide for heir substitution, it may result in your estate, or a portion thereof, devolving intestate.
Always provide for your children, or failing them, their lawful issue by representation, even if your children are not yet born.
Provision can be made for the protection of your heirs’ inheritances from existing and future marriages.
Their inheritances will thus not form part of any joint estate.
A testamentary trust can be created for, amongst others, minor heirs.
In terms of our laws, the inheritance of a child under the age of 18 years must be paid into the Guardian’s Fund. This can be prevented by creating a testamentary trust, which also gives you the opportunity to add conditions which will benefit and protect your heirs.
An Executor must be named to liquidate and distribute your estate and it is essential that your Executor and Trustee, where applicable, be exempt from furnishing security.
Failing exemption, a bond of security must be obtained, which will result in your estate paying an annual insurance premium based on the value of your estate.
You can appoint a guardian for your minor children, failing the existence of a natural guardian.
The natural guardian of a child is the father, or failing him, the mother. This is effective even if you are divorced, except in the case of a court order prohibiting a parent from being the guardian or granting guardianship to someone else.
The result of an incorrectly signed will is also devastating to your heirs as it may lead to the rejection or partial rejection of your will.
You can also add wishes to your will, which is not binding as such, but which gives your loved ones an indication of what is important to you.
A duly signed will must comply with the following requirements in terms of Section 2 of the Wills Act no 7 of 1953, as amended:
It must be signed by the testator(s) before two competent witnesses, who must all be present at the same time and who must sign in each other’s presence.
A competent witness is a person 14 years or older who, at the time of witnessing the will, is competent to give evidence in a court of law.
If a beneficiary or a beneficiary’s spouse signs as a witness, such beneficiary will be disqualified from inheriting more than the portion that person would have been entitled to inherit, if the testator died without leaving a valid will. This means that if a person is not entitled to inherit in terms of the Intestate Succession Act, such a person shall be disqualified from receiving any benefit.
If the will consists of more than one page, it must be signed by the testator(s) on all pages. However, the last page must contain the signatures of the testator(s) as well as the signatures of both witnesses - all on one page.
Although it is not necessary for the will to be dated, it is advisable to date your will as it might pose a problem if you have more than one will.
In certain circumstances the will must be co-signed and certified by a Commissioner of Oaths e.g. where a person signs with a mark.
The testator(s) and two competent witnesses must sign next to any alteration to a will. In case of an existing signed will, the witnesses need not be the same witnesses who signed the will initially.
Failing a valid will, your estate will be administered in terms of the Intestate Succession Act 81 of 1987, as amended, the effect of which includes the following:
Your next-of-kin will have to nominate an executor, who will not be exempt from furnishing security unless the nominated executor is a parent or major child.
If you are married, in or out of community of property, and you have children, whether in or out of wedlock, including children from previous marriages, as well as legally adopted children, and the net value of your estate exceeds R250,000.00, your estate will be divided between your spouse and all your children, which may cause hardship.
The inheritance of a minor heir will be paid into the Guardian’s Fund until such child attains the age of 18 years.
Your heirs’ inheritances will not be protected from the consequences of existing and future marriages.
Make sure that you have a duly signed will covering your loved ones. It is one of the most important documents you will ever sign.