Your Will
What is a Will?
A Will is a declaration in a recorded document, which is drafted and signed by the person making it, i.e. the Testator/Testatrix, in accordance with a set of rules required by law in regard to the disposal of his/her property after his/her death. The formalities for the execution of a Will are designed to curtail fraud.
Why is a Will so important?
If you die without making a Will, you are said to die intestate. As you will not have nominated an Executor to wind up your estate, it will be necessary to ask the Master of the High Court to appoint an Executor. The delay can be, and often is, prejudicial. Until an Executor is appointed, there will be no one who can operate on your bank account or attend to any important matters on your behalf.
A Will is the MOST IMPORTANT document you will ever sign in your life. It encompasses everything that you’ve worked for whilst you are alive. It ensures that your loved ones are taken care of when you are no longer around. You should have peace of mind that your Will fully encompasses your wishes in the event of your sudden death, ill health, or mental capacity. Don’t leave it until it’s too late!
How do I draw up a Will?
We urge you to seek expert professional assistance for the drawing and execution of a Will, as particular issues need to be taken into account when drafting a Will. Indeed, there are several textbooks and much case law on the drafting and interpretation of Wills, but most people are unaware of the complexities and technicalities involved in Will drafting. For this reason, FISA strongly recommends against do-it-yourself Wills. It is also important to consider that when using a professional company to draw up your Will, it will then be held with and entrusted to that company, and your wishes will be correctly executed.
If you had a do-it-yourself Will that was then held at home, what would happen if there was a fire or if your will was accidentally overlooked or destroyed after you pass away?
We also recommend that a financial analysis of your estate is undertaken at the time of you drawing your Will, as you may find yourself with a cash shortfall in your estate or that you make special specific bequests that cannot be met. It is important that you make your intentions clear.
You will not be there to explain what you meant when the Will comes to be interpreted. The professional will also ensure that the legal formalities have been complied with and that the Will is drafted in terms which correctly record your intentions.
Can anyone draw up a Will?
Anyone over the age of 16 can make a Will unless they are mentally incapable of appreciating the nature and effect of the act. A married person, irrespective of how they are married, can draw up a Will without the consent or assistance of that person’s spouse.
a) Do only rich people need to draw up a Will?
Wills are not only for rich people. Everyone should have a Will, irrespective of their financial status.
b) Is it ever too early or too late to draw up a Will?
You have to execute a Will whilst you are in your right state of mind. You could develop Alzheimer’s or even suffer from memory loss in your old age, and yes, then it’s too late to execute a Will – you could be involved in an accident and not be “compos mentis”. Draw up your Will whilst you’re of sound mind!
Does a Will need to be updated regularly?
If your circumstances and wishes remain constant – no, it’s not necessary to change your Will too regularly. However, I strongly suggest that you revisit your Will once a year and question your intentions in that Will. If your wishes remain the same, you do not need to change it.
However, if your circumstances have changed, i.e. marriage, divorce, the birth of children, retirement etc., or there may have been changes to the Law, which may affect your beneficiaries, you need to take cognisance of that. Be aware of the wishes expressed in your Will at all times. Ask yourself, “ If I died, now is my Will as per my wishes?” If the answer is no, change your Will immediately.
What happens if you die without a Will?
You will then die intestate. In the absence of a Will, your estate will be disposed of in accordance with the Law governing Intestate Succession. If a person dies intestate, leaving a surviving spouse and children, the surviving spouse takes whichever is the greater of a child’s share or an amount fixed from time to time by the Minster of Justice, currently R250 000.
The surviving spouse counts as a child for the purpose of determining a “child’s share”. Thus if the estate is valued at R500 000 and there are four children, the surviving spouse will receive R250 000.
The balance of R250 000 will be divided equally between the children, and, should the children be minors, i.e. under 18 years of age, their share will be lodged with the Guardian’s Fund.
The guardian of the minor children will then have to apply to the Fund for the release of monies from time to time until the child attains majority. This could apply to grandchildren inheriting through your Will, i.e. where your child may have predeceased you and their inheritance being passed to their issue.
What if there are multiple Wills, how do they determine which one is valid?
The latest dated Will determines the validity of that Will and gives preference to it, provided that Will complies with the Wills Act of 1953. Many Wills have been set aside as being invalid because they were not properly signed or witnessed.
What common mistakes in a Will can delay the process of an estate?
a) If the Will is not signed and witnessed, and dated properly;
b) The witnesses are disqualified from taking any benefit from the Will;
c) If the person nominated in the Wills to be Executor signs as a Witness, the nomination is rendered invalid;
d) If a wish is too vague;
e) If you leave your property which is handed to a minor (in trust) and there is insufficient cash in the estate to pay the bond;
f) If you bequeath all the assets of a business to a legatee and don’t deal with the liabilities – your estate will firstly be liable for the liabilities of the business.
To summarize, the most important points for you to consider, with regards to your Wills:-
- Whatever your situation, we advise you to draw up or update your existing Will as soon as possible;
- Make sure you define your beneficiaries, i.e. my wife, Ann Smith;
- If you have divorced, make sure you have amended your Will, your ex-spouse will not automatically be precluded. However, there is a three-month grace period after divorce;
- Co-Executors / Co-Trustees
If we do your Will, we encourage the appointment of Co-Executors and Co-trustees. We are nominated as the Administrative Executors and Trustees – we run with all the day-to-day admin. with regards to the winding up of the Estate and the running of the Trust. The Co-Executors and Co-trustees are responsible for all decision-making and are involved every step of the way. At all times, all parties have to be considered – we can’t make decisions without anyone else. This is why we also can include your Financial Advisor’s name – as they would be involved in all decision-making, especially with regard to finances and investments. - Nominate guardians for minor children;
- State the intended age of dissolution of a Trust; otherwise, it will be dissolved at 18;
- We strongly recommend that you deal with your Offshore Assets in a separate Will if you intend those assets to remain offshore. The repatriation of your assets to South Africa may be exactly what you wished to avoid. We recommend separate Wills for each of your foreign/offshore assets;
- Deal with simultaneous death of testator and beneficiaries;
- Deal with a succession of beneficiaries;
- Understand the use of words like “usufruct”, “right of occupation” and “fideicommissum”;
- Lastly, have peace of mind at all times that your Will fully encompasses your wishes in event of your sudden ill health, mental capacity or death. Don’t leave it until it’s too late!!!!