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Wills

Will services


Benefits of a Will

A Will allows you to:

Provide for assets to be safeguarded for heirs.


What happens if I don't have a Will?

Without a Will your assets will be divided and distributed according to the Intestate Succession Act (Act 81 of 1987).
In short, this means that:


Who can make a Will?

Any person older than 16 years can make a Will. The testator should be mentally capable of understanding the consequences of his or her actions at the time of signing the Will.

Planning a Will

Your Will should provide for the following:


Signing a Will

The signing of your Will is the most important step in validating a Will. The requirements for the signing of a valid Will are contained in section 2(1)(a) of the Wills Act 7 of 1953.

The following guidelines must be followed:


Returning a signed Will for safe keeping

Return all original signed Wills to your advisor or servicing office for safe keeping, otherwise there will be no record of the signed Will.


For more information on specialized fiduciary or trust services contact info@efboe.co.za or one of our marketers listed on our Contact Page.

Click here to download instructions for signing your Will

FAQs

Over and above providing for the abovementioned contingencies, your Will must also provide for the following:

  • Revocation of all previous testamentary acts.
  • Appointment of an executor to deal with the administration and liquidation of the estate and the distribution of the assets to the heirs.
  • Appointment of a trustee to manage the assets in trust on behalf of the beneficiaries until the happening of a future event.
  • Exemption of executor and trustee to furnish security to the Master of the High Court.
  • Conferring powers and duties upon the trustee to manage the trust funds and to utilise the income and/or capital for the benefit of the beneficiaries.
  • Protection of the inheritance of a beneficiary from any existing or future marriage in community of property.
Your Will can be reviewed and revised as often as necessary to make provision for changing family and/or financial circumstances.

As a general rule of thumb, you should review your Will periodically, and definitely on any of the following events:

  • Getting married and where the marriage is in community of property and the estate is substantial.
  • The birth of children or grandchildren in the family.
  • Divorce or separation.

When you get married, your existing Will is not automatically cancelled.

Divorce does not automatically cancel your Will either, but any bequests to a former spouse shall be void for a period of three months after the date of divorce, after which period such bequests become effective and valid again if the Will has not been changed.

If the marriage is in community of property and the assets are registered in the husband’s name, he could find himself virtually dispossessed of half of his assets if his wife has no Will or if she has a Will nominating heirs other than her husband, or the other way around.

It is also important to revise your Will when you enter into a business venture and upon retirement.

If the Will is not reviewed when your circumstances have changed, it may result in unnecessary grief and also have severe financial implications.
According to the Wills Act 7 of 1953, any of the following scenarios shall disqualify you from bequests in a Will.

Any Person:

  • who attests and signs a Will as a witness; or
  • who attests and signs a Will as a witness and is also the nominated executor, trustee or guardian; or
  • who signs a Will in the presence and by the direction of the testator; or
  • who writes out the Will or any part thereof in his own handwriting; and
  • who is the spouse of such a person (mentioned above) at any time of the execution of the Will.
A benefit includes the nomination of a person as executor, trustee or guardian.

In addition, the common law provides for a number of cases where a person cannot benefit under a Will:

  • a person who had unduly influenced the testator for the purpose of obtaining a benefit under the Will cannot take the benefit;
  • a person who has married a minor without the consent of the latter’s parents or guardians cannot take any benefit under the will, not even where the testator was a major at the time of making it nor even if the necessary consent had been obtained after marriage;
  • a person who has caused the death of the testator cannot benefit under his Will. This is so whether the beneficiary caused the testator’s death directly or indirectly, e.g. by encouraging him to drink himself to death.
A Will should be duly signed by the testator and two independent witnesses. However, in abnormal circumstances like the national lockdown due to COVID-19, it will depend on a court to declare the Will valid or not, should it not meet the normal requirements. It is costly though and every effort should be made to rather comply with the normal requirements.


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