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Curse of the careless testator: Is your will valid?
17 July 2012
 

The importance of a will cannot be overstated. Not only does it provide expression to a deceased person’s last wishes regarding the division of his/her assets but it can provide financial security for loved ones for years to come. It can thus rightly be said that a will is probably the most important document a person will ever execute. To achieve these aims however, a will must have been validly executed by the testator (the person executing the will).

In the absence of a valid will, your loved ones may find themselves faced with the challenge of an invalid or non-existing will, thereby creating uncertainty and anxiety regarding the deceased’s assets as well as the future financial care and well-being of loved ones, exactly the consequences a careful testator wishes to avoid with a proper and valid will.

To ensure that your will is valid, one should start by looking at the reasons for drafting a will, the consequences of not drafting a will and then lastly the legal requirements for a valid will.

Why draft a will?

The making of a will places you in a position to decide how your assets are to be distributed and dealt with after your death. South African law allows almost complete freedom of testation thereby ensuring that only those persons who a testator wishes to have benefit from the deceased estate, in fact do so. Thus a person who is not a beneficiary to a will in general has no claim against a deceased estate where the deceased has left a valid will.

A will can, amongst others, specify which property is to be distributed after death and to whom. It can award specific gifts to specific persons and it can designate who will care for minor children. The latter is very important because failing to identify the guardian of your minor children, will require a court to do so on your behalf. One can also contribute to charities and other institutions in terms of a will.

A will allows the testator to name one or more persons of the testator’s choice (known as an executor) to act as his/her representative after death and carry out his/her wishes as proclaimed in the will. The executor transfers the testator’s property to the beneficiaries the testator has designated and pays off any debts owing by the deceased’s estate. Importantly, the executor always acts under the supervision of the Master of the High Court. Choosing an appropriate person to act as your executor is therefore crucial to ensuring the quick finalisation of your deceased estate. Where the executor appointed does not have the required skills to finalise the estate, an agent (such as an attorney) can be appointed by the executor to assist in administering the deceased estate.

A well planned and drafted will can be an estate planning tool which can create financial security for beneficiaries, protect assets and ensure that tax planning regarding estate duties is properly conducted to avoid placing a hefty financial burden on your heirs.

What happens if a person does not have a will (or a valid will)?

In the event that a person dies without a will or if a person’s will is found to be invalid, such person’s assets will be divided and distributed according to the law of intestate succession.

Intestate succession is primarily based on blood relationship and the blood relations to the nearest degree of the deceased will generally inherit. For example, all children will inherit an equal portion and a surviving spouse (if any) will inherit a child’s portion or R125 000, whichever is greater.

Should no relatives of the deceased be traceable, the estate will devolve upon the Guardianship Fund for a period of 30 years. Should no relatives lay claim to such estate during such period, the estate will be forfeited to the state.

What are the requirements of a valid will?

When drafting a will a number of formalities must be complied with for a will to be considered as valid. A will must be signed by the testator at the end of the will. Such signature must be made in the presence of two witnesses who in turn must sign the will in the presence of each other as well as the testator. Should there be more than one page, each page must be initialled by the testator and preferably also by all the witnesses. Any amendments to a will must also comply with the same signing formalities.

A person who signs the will as a witness cannot be a beneficiary under the will and a person who writes out the will on behalf of the testator cannot receive any benefit under the will.

Any person 16 years of age or older can make a will, unless at time of drafting such person is mentally incapable of appreciating the nature and effect thereof. Any person 14 years of age and older who at the time of execution of a will, is competent to give evidence in a court of law, can be a competent witness to a will.

A will can be revoked or altered at any time before death and it is good practice to review your will regularly, for example, when one has experienced major life changes such as having children, getting married or divorced, death of a close family member or acquisition of a large asset.

Who should draft my will?

The courts have in recent years lamented the use of untrained advisors who draft wills on behalf of testators. While it is quite possible for a person to execute his/her own will (if all the legal requirements are met), it is still preferable that a will be drafted by a qualified professional who has a thorough understanding of not only the requirements for a valid will, but also of the estate duty and other tax implications of the provisions in a will. Where the will becomes an estate planning tool, it is very important that a qualified professional assist you to do this properly to ensure unforeseen long-term consequences for your heirs.

If you don’t have a will or have not recently reviewed your will, it is advisable that you consult with a qualified professional to obtain a will or ensure that you update your will so that it is valid and enforceable in a way that correctly demonstrates your wishes. You don’t want your tardiness to be the curse your heirs have to bear.