Wills

Having a valid will can help ensure that the right people benefit from your wealth
Preserving your wealth and distributing it to your family and loved ones is just as important as growing your wealth. This requires having a current and valid will.

A will is an important legal document that has a significant impact on your family and dependants’ quality of life after you pass away. However, there is more to preparing a will than recording your wishes in writing, signing the document, and keeping it somewhere safe for future reference. There are many pitfalls to watch out for when drafting a will, which is why it’s advisable to get specialist advice.

What makes a will valid?
The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. 
The points below summarise some of the basic requirements:

1. You must be at least 16 years of age to have a will, and must be mentally capable of understanding the nature and effect of executing the will.
2. Your will must be in writing.
3. Your will must be signed by both yourself and two competent witnesses. A competent witness is anyone over the age of 14 years who is of sound mind, capable of understanding the consequences of their actions, and capable of giving evidence in a court of law.
4. You can sign your will by making a mark (such as an X or a thumb print). However, this must be certified by a commissioner of oaths, who states that they are satisfied that you are who you claim to be, and that the will is in fact your will. Witnesses cannot sign by making a mark.
5. The signatures at the end of the will must be sufficiently close to the final substantive words of the will. If too large a gap is left, then the signatures and will may be invalid.
6. You and your witnesses must sign in each other’s presence.
7. If your will is more than one page, then you must also sign each page other than the final page. Although it is not essential for your witnesses to also sign each page, it is recommended.
8. A beneficiary or executor should not sign as a witness. If they do, they may be disqualified from inheriting under the will.
9. While it is not a formal requirement for validity, it is highly recommended that you date your will to avoid any confusion in case more than one will is found.

If you pass away without a valid will, your wishes may be ignored
If you do not have a valid will, you will die intestate. This means the assets in your deceased estate will be distributed in accordance with the Intestate Succession Act 81 of 1987. As a result, your wishes may be ignored. Your loved ones may not receive the assets you wished them to have, or your estranged spouse or child may receive a portion of your assets that you may have preferred to allocate elsewhere.

Dying intestate could also lead to serious delays in the administration of your estate and create tax and legal problems, which could result in financial losses for your family and dependants. It could also lead to potential conflict between your family and dependants.  
 

Key factors to consider when drafting a will 

While a valid will is fundamental, there are many other factors to consider to ensure that your intentions are fully carried out after you've passed away. It is important that your will should reflect your unique personal and family circumstances and goals, and that it adequately covers all eventualities and contingencies.

A.  Changes in your circumstances

Your circumstances are always changing. To ensure both your will and estate plan remain relevant, it is important to review these regularly, especially in the following circumstances:

• The start of a relationship, union or marriage
• The birth of a child or heir
• The termination of a relationship or divorce
• Acquiring or selling a major asset
• A new business venture
• A change in financial circumstances such as receiving an inheritance or becoming insolvent

B.  Obligations you may have

Under South African law, we have freedom of testation. This means that you can freely choose to whom you pass on your assets or who you want to disinherit, but there are certain limitations:

• You have an obligation to maintain and educate minor and needy children.
• Divorce and maintenance orders do not necessarily cease on death. The surviving spouse has a claim for reasonable maintenance needs against the estate of the first dying spouse.
• Any spouse married out of community of property and subject to the accrual system may have a claim against the estate of the deceased spouse for a portion of the accrual amount (as agreed upon in the marriage contract).

C.  Liquidity in your estate

If you bequeath a cash legacy to a beneficiary, it’s important to ensure that your estate has sufficient liquidity to accommodate the bequest. To avoid your loved ones being forced to sell assets unnecessarily to cover costs and liabilities, this requires careful consideration of a bequest that is subject to a burden or charge on the estate or property.

 D.  Legislative changes

As mentioned above, reviewing your will when your circumstances change is crucial. However, legislative and tax changes can also have an impact on your estate and the wording of your will. That is why it’s important to review your will more frequently to ensure you take into account these changes.

We have specialist expertise to help you set up and manage your will

Our fiduciary specialists have the expertise to help you draft a clear, unambiguous and concise will that meets all the necessary legal requirements. We also stay on top of legislative or tax changes that can affect your estate. Having a current, valid will tailored to your circumstances can give you peace of mind that your family and loved ones won’t be subjected to unnecessary financial hardship and emotional stress when you’re no longer here. Please contact your relationship manager if you wish to discuss anything further or if you would like to arrange a meeting with a fiduciary specialist.