More about a valid will
- A Will is the only way a person can ensure that his/her estate will be divided according to their wishes after death.
- If there is not a valid Will at the time of death, the estate will be inherited according to intestate rules. These rules can be both impractical and inflexible.
- Will at the time of death, the estate will be inherited according to intestate rules. These rules can be both impractical and inflexible.
- With intestate succession, the incorrect people may inherit.
- If there is no Will and the value of the estate is more than R 200 000, the Master of the High Court will convene a meeting of family members in order to appoint an executor. This causes a delay and is a costly and time-consuming process. The estate will be frozen whilst it is being wound up.
- The Master may also require the executor to provide security. This will usually take the form of a security bond from a short-term insurance company for the value of the assets reflected in the preliminary inventory.
- A person still in distress over the death of a loved one is faced with many requirements from the Master and often has no idea where to start. If there is a Will, the instructions of the testator will be followed, and the appointed executor will assist the family.
- Unpleasant situations of heirs squabbling over assets could easily arise if there is no Will.
- Where a person leaves no Will and has minor children, their inheritance must be paid to the Guardian’s Fund until the child reaches majority. Not only may the rate of return on the assets be low, but other administrative and practical difficulties may arise.
- The Will can be used as a tax-planning tool.
- For example, the deceased’s estate duty position can be reduced by means of bequests in the Will to a surviving spouse or charity, as well as the optimum use of the R 3 500 000 estate duty abatement.
- Should one wish to become an organ donor: The Organ Donor Foundation website www.odf.org.za provides information about becoming an organ donor.
The person who draws up a will is called the testator/testatrix. All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death, unless they were mentally incapable of appreciating the consequence of their actions at the time of making the will.
All persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law.
Since 1 January 1954 all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/ testatrix. Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.
If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross). When the will is signed by someone on behalf of the testator/testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix. The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.
A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.
Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.
A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.
The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on instruction of the testator or as a witness. Consult Jan L Jordaan Inc for more information in this regard.