Will services
- LPlanning of Wills
- LDrafting of Wills
- LApplications via e-mail
- LSafe custody of signed Wills
- LGeneral information and advice relating to Wills
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.
Benefits of a Will
A Will allows you to:
- LArrange for your assets to be managed by a competent person on behalf of minor beneficiaries until such time as they are old enough to deal with the assets themselves.
- LRequest whether to be buried or cremated and your last wishes regarding the ceremony.
- LDonate your body or certain organs for medical purposes.
- LEnsure that family heirlooms remain in the family.
- LEnsure the cost effective administration of your estate.
- LImpose certain special conditions to apply to your bequests.
- LPlan to minimise any tax liability.
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:
- LThe Master of the High Court appoints an executor.
- LYour assets will be divided between your spouse and children (or other blood relatives) according to the intestate act.
- LThe minor children’s inheritance will be in control of the Guardian’s Fund.
- LThe Law of Intestate Succession may not recognize your ‘common-law’ spouse if no Will specifies otherwise.
Planning a Will
Your Will should provide for the following:
- LIf the husband (testator) is the first-dying.
- LIf the wife (testatrix) is the first-dying.
- LIf the survivor dies without having made another Will.
- LIf both the husband and wife die simultaneously.
- LIf there is obliteration of the family.
- LIf a beneficiary (child) is still a minor, to retain the bequest/inheritance in trust.
- LIf a child is still minor, to consider nominating a guardian.
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:
- LTwo impartial witnesses must be present during the signing of your Will. These witnesses must be over the age of 14 years, be of sound mind and capable of understanding the consequences of their actions and be able to testify in a court of law.
- LYou must sign the Will in the presence of both witnesses.
- LThe Will must be signed in full on the last page as well as at the bottom of every preceding page.
- LIf you are only able to sign your name via the making of a mark, it must be made before a Commissioner of Oaths who cannot sign as a witness also. The Commissioner of Oaths must co-sign each page of the Will. Two competent, impartial witnesses must still sign as well. In case of uncertainty, please contact us for the correct procedure.
- LIt is also advisable that the witnesses sign all pages in your presence and the presence of one another. However, the two witnesses must sign the Will in full at the end in the space provided for their signatures, in your presence and in the presence of each other.
- LAny person nominated in a Will to receive any benefit, as well as the executor, trustee and guardian, including such a person’s spouse, cannot sign as a witness as this would disqualify them from receiving the specified benefit or hold the nominated position.
- LAny deletion, addition, change or interlineation must be validated with signatures by you and two witnesses. These witnesses need not be the same who witnessed initially, but must be present when you sign.
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.
FAQs
1. What contingencies should I consider in my Will?
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.
2. How often should I review my Will?
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.
3. What can disqualify me from being an heir?
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.
4. What happens if a Will is not correctly signed due to abnormal circumstances?
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.