Dying with a will

By SIYANDA MAKUNGA

In our previous article we discussed the legal distribution of a deceased’s estate, if a person died without leaving a Will behind. In this article, we will provide requirements and a guideline for the creation of a valid Will. Let us first look at the scenario below.

Scenario

Ms Zanemali drafted her own Will. In her Will she bequeaths her entire estate to her two daughters in equal shares. The Will is signed in her home without witnesses. Two days later she dies. The daughters present the

Will at the Master’s Office. The validity of the Will is in dispute, because the law requires that a Will be signed in the presence of two witnesses, and for those witnesses to sign the Will.

The scenario above highlights the importance of having a Will that is in line with the requirements of a valid Will as stipulated in the Wills Act 7 of 53 (The Act). Compliance with the Act will also prevent disputes and having to approach the High Court to determine whether a Will is valid, which is a costly exercise.

What is a Will?

A Will is a legal document that express your wishes regarding the distribution of your estate once you have died. In a Will you can appoint an executor who will administer your estate. The appointment of someone you can trust as executor can give you comfort that the rightful heirs that you have chosen will indeed inherit. You can also provide the names of the people you would like to inherit all your assets (property, money, furniture etc). You can also nominate a guardian for your minor children, and set up a trust fund for the children.

The Act provides the requirements and formalities for a valid Will.

Formalities

• The Testator (person who made the Will) must be at least 16 years of age and be capable of appreciating the nature and effect of creating a Will.

• The Will must be in writing.

• The Will must be signed by the Testator and two competent witnesses on each page. A competent witness is a person who is at least 14 years of age.

• If the Will is signed by the making of a mark or thumbprint, it must be done in the presence of a commissioner of oaths.

• The Will must be dated.

Non-compliance with the formalities may require the intervention of a High Court, which must be satisfied that the document concerned was intended by the deceased to be his/her Will.

Who can inherit in terms of a Will?

Spouses and life-partners

• Unborn children, biological, adopted and extra-marital children

• Organisations, churches etc

• Contents of a Will

• Personal details

• The name, address and identity number of the Testator.

Revocation clause

This clause cancels all the Wills that were created before. It is important to express that the current Will replaces previous Wills to avoid confusion, even though the law provides that the later Will automatically replaces the former Will(s).

Bequests

The Testator provides instructions for the distribution of his/her assets. The Executor will ensure the named beneficiaries receive their inheritance.

Appointment of an Executor

The Testator appoints the person who will administer his/her estate.

General provisions

An important general provision is that the Testator may state that any bequests received by his/her heir(s) will be excluded from any joint estate, or from any estate of an heir who is married or to be married in community of property, or out of community of property according to the accrual system.

Signature

It is important that the Testator and the two witnesses sign the Will.

Date

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.

How to create a will

It is advisable to have your Will drafted or updated by a lawyer.

Please note: The Rhodes University Law Clinic will be participating in National Wills Week, which runs from 26-30 October 2020. During this time, the Clinic will draft free basic Wills for any member of the public.

Should you wish to have a Will drafted, please contact the Clinic’s reception

(046 603 7656) before or during National Wills Week to make an appointment to consult. Please note that capacity is limited, and so clients will be assisted on a firstcome, first-served basis.

• Siyanda Makunga is an attorney at the Rhodes University Law Clinic