LAST WILL & TESTAMENT – A BRIEF OVERVIEW

1. WHAT IS A WILL?

1.1 A will is a written document signed by a person (“the testator”) during his/her lifetime directing how his/her assets should be disposed of after his/her death.

1.2 The formalities required for the execution of a valid will on or after 1 January 1954 are contained in the provisions of the Wills Act 7 of 1953, as amended by the Law of Succession Amendment Act 43 of 1992.

1.3 Generally, our law recognizes total freedom of testation, subject to public morals. It thus follows that a person may, for example, disinherit his or her spouse and/or children (but that does not preclude them from claiming maintenance from the deceased estate).

1.4 Whereas a will is a specialized document requiring strict compliance with, amongst others, the said acts, it is essential to have it drawn up by an expert.

1.5 It is highly recommended that readers review their wills regularly and particularly when there is a change of status, for example, marriage (or the dissolution thereof) or the birth of a child.

2. WHAT ARE THE ADVANTAGES OF HAVING A WILL?

The testator has the opportunity to plan his/her estate with the assistance of trusted professional advisors so as to ensure that:

2.1 a competent or trusted executor of the testator’s choice is nominated;

2.2 the heirs of particular assets are nominated;

2.3 the estate devolves efficiently, cost effectively and with the minimum of delay;

2.4 the heirs receive the maximum benefits from the inherited assets;

2.5 the estate assets are passed on to beneficiaries with the minimum impact caused by income tax, estate duty, etc.;

2.6 trusts are created to control assets being awarded to minor children;

2.7 a guardian of the testator’s choice is nominated to care for minor children.

3. WHAT ARE THE REQUIREMENTS FOR A VALID WILL?

3.1 The following are a number of important formal requirements that have to be complied with when drafting and executing a will:

3.1.1 Any person of 16 years and older is competent to execute a will provided he/she understands the nature and effect of his/her act.

3.1.2 Persons of 14 years and older may sign as witnesses provided that at the time of signature they are not incompetent to give evidence in a court of law.

3.1.3 A beneficiary to a will should only sign as a witness if the will has been attested and signed by at least 2 other competent witnesses, i.e. 3 altogether, as otherwise the beneficiary will be disqualified from receiving any benefit under the provisions of that will.

3.1.4 Similarly, a nominated executor, trustee or guardian should only sign as a witness if the will has been attested and signed by at least 2 other competent witnesses, i.e. 3 altogether, as otherwise the executor, trustee or guardian will be disqualified from being appointed as such.

3.1.5 Any person aged 18 years or older of sound mind can be nominated as the executor of a testator’s estate.

3.1.6 Since 1 January 1954 all wills must be in writing, i.e. written by hand, typed or printed.

3.1.7 The testator must sign the will at the end thereof. “Sign” includes the making of initials or a mark.

3.1.8 If the will comprises more than one page, each page must be signed by the testator.

3.1.9 The signature of the testator must be made in the presence of at least 2 competent witnesses (see 3.2 above).

3.1.10 The witnesses must sign the will in the presence of the testator and of each other. “Sign” includes the making of initials but unlike a testator a witness may not sign by means of a mark.

3.1.11 Although the testator has to sign all the pages of the will, it is only the page on which the will ends that needs to be signed by the witnesses.

3.1.12 If a testator is unable to sigh his/her name, a will can be signed by the making of a mark (a thumb print or a cross) or by someone on behalf of the testator in which event 3.1.1 – 3.1.11 still has to be complied with and, in addition thereto, a commissioner of oaths has to be present who has to certify that he/she has satisfied himself/herself as to the identity of the testator and that the will so signed is the will of the testator.

3.1.13 A codicil can be executed to amend or supplement an existing will but it has to comply with all of the above requirements applicable to a will, save that it need not be signed by the same witnesses who signed the original will.

3.1.14 The Wills Act does not prescribe dating a will but it is advisable so as to determine a testator’s last will.

4. WHAT HAPPENS IF THERE IS NO (VALID) WILL?

4.1 If a person dies without having executed a (valid) will, the estate will devolve in terms of the rules of intestate succession as contained in the Intestate Succession Act 81 of 1987. This may result in the deceased’s estate being inherited by persons other than those intended by him/her.

4.2 Various other problems may also arise when a person dies without having executed a valid will, amongst which are the following:

4.2.1 The appointment of an executor will be delayed which may cause inconvenience to the dependents of the deceased.

4.2.2 The surviving spouse’s inheritance is limited by the laws regulating intestate succession which may prejudice him/her and her ability to take care of minor children.

4.2.3 The inheritance of minor children has to be paid to the Guardian’s Fund and retained until the minor attains majority (which is now 18 years).

4.2.4 The simultaneous death of parents may result in minor children not having the advantage of a nominated guardian.

4.2.5 It may not be possible to maintain continuity with a farming operation or business enterprise of the deceased.

What is stated above is not meant to be a comprehensive guide on Wills, nor does it provide legal or other advice relating thereto. The information provided is merely aimed at informing readers of some basic aspects pertaining to wills.