Dy­ing with a will


What is a will?

A Will is a le­gal doc­u­ment ex­press­ing your wishes as to how you want your prop­erty to be dis­trib­uted fol­low­ing your death. It is an im­por­tant part of es­tate plan­ning. The only way in which the law will recog­nise your in­ten­tions of what should hap­pen to your es­tate, is if your in­ten­tions/wishes are doc­u­mented in writ­ing in the form of a Will. Should you fail to pre­pare a valid Will prior to your death, you will be said to have died in­tes­tate, and the laws of in­tes­tate suc­ces­sion will de­ter­mine how your es­tate is di­vided. If, how­ever, you leave be­hind a valid Will, you are con­sid­ered to have died tes­tate, and your es­tate will be dis­trib­uted ac­cord­ing to your wishes.

Ca­pac­ity to make a will

The ca­pac­ity to make a Will is known as tes­ta­men­tary ca­pac­ity. The Wills Act 7 of 1953 spec­i­fies that the per­son draw­ing up the Will must be: • At least 16 years of age; and • Men­tally ca­pa­ble of un­der­stand­ing the na­ture and ef­fect of his act at the time of mak­ing the Will. Wills are mostly dis­puted on the is­sue of men­tal ca­pac­ity. The per­son al­leg­ing that the tes­ta­tor lacked men­tal ca­pac­ity to ex­e­cute a Will has to prove this. This nor­mally in­volves ev­i­dence from a med­i­cal prac­ti­tioner. The per­son al­leg­ing in­va­lid­ity has to first ap­proach the Mas­ter of the High Court. If the Mas­ter ac­cepts the Will as valid, a dis­sat­is­fied party will have to ap­proach the High Court.

Le­gal re­quire­ments to make a will in terms of the wills act 7 of 1953

The will must be in writ­ing. The Tes­ta­tor must sign the will in the pres­ence of two wit­nesses. The Will must be signed by the tes­ta­tor at the end and must be signed (or at least ini­tialled) on each page too. When the tes­ta­tor can­not write or sign for him/her­self, the Will can be ‘signed’ be­fore a Com­mis­sioner of Oaths us­ing a thumb print.

Who can in­herit in terms of a will?

• Un­born chil­dren • Adopted and ex­tra-mar­i­tal chil­dren • A class or group of peo­ple

Con­tents of a will • Per­sonal de­tails of the Tes­ta­tor:

The Tes­ta­tor must be clearly iden­ti­fied. A Will must in­clude his/her full names, iden­tify num­ber and ad­dress at the time of draft­ing the Will.

• Re­vo­ca­tion clause:

The Tes­ta­tor must can­cel or deem in­valid any other Will made pre­vi­ously to the present one.

• Ap­point­ment of the ex­ecu­tor:

The ex­ecu­tor is the per­son en­trusted to carry out the last wishes of the tes­ta­tor.

This is the part of the Will where the Tes­ta­tor leaves his/her prop­erty to cho­sen ben­e­fi­cia­ries.

• Be­quest: • Fu­neral In­struc­tions:

The Tes­ta­tor may wish to spec­ify de­tails per­tain­ing to the fu­neral. • An ex­am­ple of a gen­eral clause is

Gen­eral Clauses:

the ex­clu­sion of cer­tain mar­i­tal regimes from a be­quest to the Tes­ta­tor’s heirs.

This means that any ben­e­fit given ac­cord­ing to the Will can­not be in­cluded as part of the ben­e­fi­cia­ries’ joint es­tate in a mar­riage in com­mu­nity of prop­erty or as part of the ac­crual in a mar­riage out of com­mu­nity of prop­erty.

This is done to pro­tect the ben­e­fit should the Tes­ta­tor’s heir go through a di­vorce.

It is im­por­tant that the Tes­ta­tor signs the Will and ini­tials ev­ery page along­side two wit­nesses. • A Will must be dated. This is nec­es­sary to dis­tin­guish dif­fer­ent Wills and to es­tab­lish which Will was the last one writ­ten by the Tes­ta­tor.

• Sig­na­ture: Date: Re­mem­ber to keep im­por­tant doc­u­ments safe. Ex­am­ples are:

• Ti­tle deeds to any prop­erty/ ies the tes­ta­tor owns. • Bank state­ments. • Pol­icy doc­u­ments (in­vest­ments and life in­surance poli­cies) • Ve­hi­cle regis­tra­tion doc­u­ments • Cloth­ing and furniture ac­count records

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