Your will is yours to make

Your will is yours to make
10 Feb 2021

No one wants to think about their own mortality. Let alone what needs to be done in preparation for their inevitable demise. But, you know the saying – “in this world nothing can be said to be certain, except death and taxes”. And that’s a given.

A morbid conversation, to say the very least, but necessary. Because the passing away of a loved one leaves families (and friends) in pieces, not knowing which way to turn first. So let’s make it easier on them and ensure that your estate is perfectly set up long before you shuffle off your mortal coil.

Be the early bird and help your beneficiaries catch the worm… the first step – your will.

What is a will?

In its simplest form, a will expresses your final wishes, once you have given up the ghost. According to LexisNexis, a will is a formal, signed, written document, in which the dearly departed (now referred to as the testator) voluntarily sets out their instructions in unambiguous terms as to how their assets are to be “passed down” or inherited following their demise.

What can be contained in a will?

A will allows a testator to dispose of the whole or any part of their estate as they please. A person’s estate is made up of the aggregate of assets and liabilities at the time of passing. This can include immovable property, jewelry, shares and unit trusts or even your beloved sheepskin slippers.

A will also enables a testator to institute heirs and appoint legatees (or their substitutes), postpone the vesting of a bequest (something that is handed down by virtue of a will) subject to a condition, create trusts, appoint trustees and administrators (and to regulate their powers), appoint executors and guardians and even make a will without naming beneficiaries (such as one in which a previous will is revoked, an executor appointed, or an heir disinherited).

Basically, as long as it is not illegal, impractical or against public policy you can leave anything to anyone in your will. Provided your will is valid. For example, you can specify in your will that you are leaving your entire estate to your beloved fur child (this happens). Or you could leave your entire estate to a charity like the SPCA or Kitty and Puppy Haven. Perhaps even your favourite church. It is entirely up to you. Which seems obvious. But it is important to note that you do not have to leave all your assets to family, if that is not your wish. You have choice. And this is known as freedom of testation (discussed below).

What if I don’t leave a will?

This would be unwise and we hope to dissuade you from this.

But, if you fail to draft a valid will, meaning you will have passed intestate (literally meaning without a valid will) the assets in your deceased estate will be distributed in accordance with the Intestate Succession Act 81 of 1987. This in essence means that with no valid will to direct your executor as to what you want to go to who, your estate will be administered and divided according to Section 1 (1) of the Intestate Act, either wholly or in part as follows –

(a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;

(b) is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate;

(c) is survived by a spouse as well as a descendant-

(i) such spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and

(ii) such descendant shall inherit the residue (if any) of the intestate estate;

(d) is not survived by a spouse or descendant, but is survived-

(i) by both his parents, his parents shall inherit the intestate estate in equal shares; or

(ii) by one of his parents, the surviving parent shall inherit one half of the intestate estate and the descendants of the deceased parent the other half, and if there are no such descendants who have survived the deceased, the surviving parent shall inherit the intestate estate; or

(e) is not survived by a spouse or descendant or parent, but is survived-

(i) by-

(aa) descendants of his deceased mother who are related to the deceased through her only, as well as by descendants of his deceased father who are related to the deceased through him only; or

(bb) descendants of his deceased parents who are related to the deceased through both such parents; or

(cc) any of the descendants mentioned in subparagraph (aa), as well as by any of the descendants mentioned in subparagraph (bb),

the intestate estate shall be divided into two equal shares and the descendants related to the deceased through the deceased mother shall inherit one half of the estate and the descendants related to the deceased through the deceased father shall inherit the other half of the estate; or

(ii) only by descendants of one of the deceased parents of the deceased who are related to the deceased through such parent alone, such descendants shall inherit the intestate estate;

(f) is not survived by a spouse, descendant, parent, or a descendant of a parent, the other blood relation or blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.

(2) Notwithstanding the provisions of any law or the common law, but subject to the provisions of this Act and section 5 (2) of the Children’s Status Act, 1987, illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation”.

And as you can imagine, if you have an estranged spouse, do not get on with your children or have never met your uncle or aunt, passing intestate is not ideal. Whilst you may no longer care about your estate once you pass, you worked hard for your assets and they should be distributed according to your last wishes.

Ok, so I will draft a will…

Before we get to the formalities of a valid will, we need to discuss an important aspect of drafting a will, known as freedom of testation (enshrined in Section 25 of the Constitution). The principal of freedom of testation, defined by Corbett, Hofmeyr & Kahn in The Law of Succession in South Africa (2001) p 39 as “The right of an individual to dispose of his or her property on death as he or she pleases”, is rather liberal. It grants a testator extensive power to draft a will which directs how the estate’s assets must be distributed upon death. And this principle is bolstered by two important principals, namely –

  1. Public interest – In the matter of Bydawell v Chapman 1953 (3) SA 514 (A) 521E-F, it was stated that “Roman-Dutch law recognises as a matter of public interest transcending the private interests of beneficiaries under a will, that effect should be given to the wishes of a testator … the “interests” of the testator and the public interest demand that effect should be given to a testator’s last wishes”, and
  2. The Constitution – In the matter of In re BOE Trust Ltd 2013 (3) SA 236 (SCA) § 26, it was set out as follows – “Section 25(1) of the Constitution provides that no-one may be deprived of property. The view that s 25 protects a person’s right to dispose of their assets as they wish, upon their death … is … well held. For if the contrary were to obtain, a person’s death would mean that the courts, and the state, would be able to infringe a person’s property rights after he or she has passed away, unbounded by the strictures which obtain while that person is still alive”.

And whilst that is all well and good, there are several common law limitations to the freedom of testation which must be kept in mind. For example, a provision of a will cannot be exercised where it is unlawful, against good morals, too vague or impossible to perform. Additionally, the minor children of the deceased have a common law claim to maintenance. Specific legislation may also limit one’s freedom of testation, for example, in cases where pension funds, trust property or spousal maintenance are concerned. There is also the application of public policy and Section 13 of the Trust Property Control Act 57 of 1988 to negate the effect of unfairly discriminatory exclusions in testamentary charitable trusts. Additionally there is the balancing of provisions of a will against constitutional imperatives regarding equality and non-discrimination, provided it complies with Section 36 (limitation clause) of the Constitution.

Great. Now that we understand that we have freedom to draft a will “as we deem fit”, how do we ensure it is actually valid?

What are the formalities of a valid will?

The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. They are relatively straight forward, but even a small oversight can have the effect of invalidating the entire will. So what are they? According to Dean Raviv in his article Requirements for drafting a valid will in South Africa, a valid will requires the following –

  1. The testator must be older than 16 years of age;
  2. The testator must be mentally capable of understanding the consequences of his or her actions at the time that the will was drafted. Wills or provisions that are proven to be drafted under duress, undue influence or mistake will be invalid. Convincing your father-in-law to add you to his will after 9 whiskeys is generally frowned upon, and the relevant provisions may be challenged in court. The onus of proof to show mental incapacity or lack of intention of the testator rests on the person making such allegation;
  3. The will must be in writing. It can be handwritten or printed – just makes sure it’s clear. And don’t forget to put your name on it;
  4. The testator must sign at the end of the will. While the act is not clear in this regard, it is recommended that the signature be placed just below or as near as possible to the last line of the will. A significant gap between the last line of the will and a testator’s signature maybe cause a will be declared invalid. Furthermore, the following methods of signature are sometimes necessary when the testator is paralyzed or is too feeble to sign;
  5. A testator may request a person to sign on his or her behalf. In such event, the signature must be made in the presence of the testator, at least two competent witnesses, and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages;
  6. A testator may sign a will by making a mark or a thumbprint in the presence of at least two competent witnesses and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages. Witnesses may not sign by making a mark or thumbprint;
  7. If the will is longer than one page, the testator (or someone on his behalf) must also sign every other page of the will, anywhere on the page;
  8. The testator’s signature on the last page must be made or acknowledged in the presence of 2 competent witnesses who are present at the same time. According to section 1 of the Wills Act, a competent witness is anyone over the age of 14 who is of sound mind and capable of understanding the consequences of his or her actions and can testify in court, and
  9. The witnesses must sign the last page of the will. The signatures can be made anywhere on the last page, but it is recommended that they are made below or as near as possible to the last line of the will. The witnesses’ role is to witness the signature of the testator or the person signing on the testator’s behalf. It is therefore not necessary for the witnesses to read the will. For additional evidential value, it is recommended that the witnesses add an attestation clause along the following lines: “We, X and Y, hereby confirm the signature of testator Z and declare that we have signed the will of Z on DATE in the presence of one another and of Z.
  10. Although it is not a legal requirement, it is recommended that the witnesses also sign every other page of the will.
  11. A beneficiary or executor should not sign a will as a witness. If they do, they may be disqualified from inheriting under the will (the validity of the will however will not be affected).
  12. While it is not a formal requirement for validity, it is highly recommended to date your last will and testament to avoid any confusion in case more than one will is found.”

Question – I have seen movies where rich people leave their wills in video form, can this be done in South Africa?

There is no precedent on the validity of video wills in South Africa. In order for a will to be valid and accepted by the Master of the High Court, it has to comply with the formalities as we set out above, including (but not limited to) the requirement that it must be duly signed by the testator as well as by two or more competent witnesses present at the same time. In New South Wales, Australia, and in some states in the United States of America, the issue of video wills has come before their courts and some rulings have held that in certain situations and provided specific requirements are met, video wills may be accepted as a valid last will of a deceased person. So whilst still uncertain, times may be changing. With the interaction between law and technology becoming more and more accepted, South Africa may follow suit. Time will tell. But for now, a written and validly executed will still remains paramount in South Africa.

For further information on drafting a valid and enforceable will, please refer to our website.

In closing

Whilst the above outlines, at a high level, the basic requirements for preparing a will it is not all encompassing. There are various technical issues which have not been discussed that may be important when considering the requirements for drafting a valid will that will speak to your exacting requirements and thereafter the actual administration of your estate. Seek professional guidance and ensure that everything contained in your will is above board. Our attorneys at Benaters are poised to assist you prepare your will and guide you through the process of administering a deceased estate.

Get in touch today to see how we can best assist you.

Article sourced from Benaters.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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