This is a subject that is sometimes avoided, but unfortunately it can have negative consequences for the loved ones that a person leaves behind when he/she dies if attention is not paid to drawing up a proper Will. 

Why should you have a Will?

A Will offers peace of mind on several levels: it ensures that your loved ones will be taken care of when you are no longer around; it secures your heirs’ inheritance; it provides that asset distribution can take place according to your wishes; it enables you to make decisions about what you would like to leave behind, before it is too late; and it is a legal document that complies with the South African estate law.

In South Africa a Will must be drawn up in accordance with the Wills Act and it must comply with the formalities of Section 2(1) of the Wills Act.

If a person dies with a valid Will, that person is said to have died testate and his or her Will is used to distribute their assets in accordance with their wishes.

When a person dies without leaving a valid Will, that person is said to have died intestate and their assets are distributed in accordance with the provisions of the Intestate Succession Act 81 of 1987.

Who can make a Will?

Section 4 of the Wills Act states that any person who is 16 years of age or older can make a Will.  This person must be mentally competent enough to be able to understand when he/she makes the Will that the document he/she is signing is his/her will and what the effects of the provisions in it are. 

What you need to know when drafting your Will

There are certain formalities required for a valid Will, which are briefly as follows:

• A Will must be in writing – either printed or handwritten – to be valid. An oral Will is not recognized as valid by our law.
• State that it revokes all other Wills
• The Will must be signed by the Testator or the Testatrix (the persons who execute the Will).
• Each page of the Will must be signed by the Testator/Testatrix, as well as two independent competent witnesses.
• These two independent competent witnesses mean a person of the age of fourteen years or over who at the time he/she witnesses a Will is not incompetent to give evidence in a Court of Law.
• The witnesses must be in the presence of the Testator/Testatrix at the same time when the Will is signed.
• A witness and his/her spouse may not be one of the heirs or the Executor in the Will.
• Where a Testator/Testatrix signs the Will by the making of a mark or where the Testator/Testatrix instructs another person to sign on his or her behalf, a Commissioner of Oaths or Notary Public must be present and certify at the end of each page of the Will that the Testator/Testatrix is known to him and that he has satisfied himself that the Will so signed is the Will of the Testator.
• The Will must be dated.
• You must include all details of the assets you want to bequeath as well as the names and details of your heirs.
• Decide who should be your Executor, and indicate this in your Will.
• Decide and indicate what should happen to the inheritance of a minor beneficiary, e.g. must a trust be formed for the inheritance to be paid to the trust or must it be paid to the Guardian’s Fund, etc.
• If you are the sole guardian of your minor child, indicate who should be appointed as the guardian of your child after your death.
• If your Will consists of special bequests and/or legacies, make sure that you deal with your remaining assets which will form part of the rest and residue of your estate otherwise those assets will be divided in terms of the Intestate Succession Act.
• No deletion, addition, alteration, or interlineation made in a Will executed on or after the said date and made after the execution thereof shall be valid unless the deletion, addition, alteration, or interlineation is identified by the signature of the Testator/Testatrix and by the signature of the two independent witnesses.
• Any blank spaces on the Will larger than 10cm should be struck through and initialled by the Testator/Testatrix to avoid any provisions being added to the Will by someone else at a later stage.
  
  

What is a Codicil?

A Codicil can be described as an addendum to a Will that can alter, change, add to or delete certain provisions in the Will, if the changes are not too significant.  It is an official amendment to the Will and must also comply with the same requirements for a valid Will. A Codicil need not be signed by the same witnesses who signed the original Will.

Who can assist you in drafting a Will?

You can get assistance from attorneys, banks, chartered accountants, boards of executors, insurance companies, trust companies and various individuals who have the necessary qualifications.

You can, however, draft your own Will as well, but you need to make sure that it complies with all the relevant formalities to be accepted as a valid Will. 

Where to keep a Will?

The most important aspect often overlooked when it comes to Wills is that the Master of the High court only accepts ORIGINAL Wills.  If the original Will has been lost or misplaced, an application must be brought in the High Court declaring the copy to be deemed the original. This is an expensive and time-consuming endeavour.

It is therefore important to ensure that your original signed will is kept safe by a trustworthy person or institution. Inform your family and heirs where/who is keeping your Will, so that they do not struggle to obtain it after your death.

If your original will cannot be traced after your death and your family does not want to incur the costs of filing an application with the Court, you will be deemed to have died intestate and your estate will be administered in terms of the Intestate Succession Act.

How often should I revise my Will?

It is advisable to review your Will at least every three years. If any important changes have taken place such as: the death of a beneficiary; the birth of a new heir; if you have married or have since divorced; have acquired assets, for example if you bought an immovable property or have sold it in the meantime, the Will must be adjusted as soon as possible to account for any contingency provision.

The importance of a proper and legal Will cannot be overemphasized. It is of the utmost importance to enable those left behind to give proper execution to your last will and wishes.  Too often we think we still have time but never get it done.

Do not delay!  Contact us for professional assistance!