Why it’s vitally important for you to have a valid will
No-one wants to think about leaving this world but, at some stage, you will, and it would be remiss of you not to have your estate in order to pave the way for a simple, uncomplicated process and to ensure that your wishes are honoured in the distribution of your assets to family, friends or charities. If you, as the testator, do not specify what you want to happen to your assets, they are distributed in terms of a statutory order among your closest family, which may not be what you intended.
A will should be set out in a detailed and clear-cut way as to what you intend to happen to your assets after your death. If you have minor children, your will should also appoint one or more guardians for your children and make provision, as far as is possible, for their financial support after your death.
As long as your will complies with the formalities set out in the Wills Act 7 of 1953, it does not have to be drafted by a professional; however, if your estate is complicated – such as if you own foreign assets, your own company, have immovable property or want to put a trust in place for your children – it would be wise to consult a professional who can guide you through the decisions involved and ensure that your will is a true reflection of your wishes.
It is important that you update your will regularly in order to keep up with major changes in your life – if you have recently married or divorced, had children, bought a house, or if you have inherited or purchased other substantial assets.
Your will should also be updated to reflect changes in your immediate family, such as removing protection for minors when dependants turn 18 or removing beneficiaries or executors who predecease you.
The formalities for a valid will in South African Law are:
- the will must be signed at the end by you (the testator) and initialled on all other pages
- the will must be signed at the end by two competent witnesses (over the age of 14 and not set to inherit any benefit in terms of the will) and initialled on all other pages
- the testator and the witnesses must all sign in one another’s presence, i.e. all must be together when signing the document
It is important to note that a person who is a beneficiary in terms of the will and signs as a witness cannot inherit in terms of the will.
It is worth noting that a will drafted and signed in another country is valid in South Africa as long as it meets the formalities in the Wills Act 7 of 1953. A will, whether drafted and signed in South Africa or abroad, is invalid if it doesn’t meet these formalities. If your will only deals with some of your assets, you will be partially testate and partially intestate. This means that the assets which are dealt with in the will are distributed in terms of the will and any remaining assets are distributed to your next of kin in the order created by the Intestate Succession Act.
If you die without a will, your assets are distributed in terms of the order set out in the Intestate Succession Act 81 of 1987, which provides that your assets will be distributed amongst your closest relations, depending on whether you are survived by your spouse, your spouse and children, just your children, or various combinations of aunts, uncles, cousins and other relations. While the provisions in the Intestate Succession Act may mirror your own intentions, such as for your estate to be shared amongst your spouse and children, there may be unintended consequences. For example, if you are survived by a spouse and children, the Intestate Succession Act provides that your spouse will inherit a child’s share of your estate or R250 000, whichever is greater.
It is wise to consult with a professional to ensure that your will meets the necessary formalities and properly expresses how you want to distribute your assets and provide for your immediate family upon your death. Where there’s a will, there’s a way (forward).
Katherine Timoney, Associate, Gillan & Veldhuizen Attorneys
BA (LLB) LLM (University of Cape Town)