Two essential legal documents: A will and an antenuptial contract

antenuptial contract
06 Sep 2023

In a world of uncertainty, responsible planning for the future is a crucial task. Two indispensable legal documents that offer individuals and couples a sense of security and control over their affairs are a will and an antenuptial contract. Although their purposes diverge, both documents play pivotal roles in safeguarding assets and ensuring the preservation of one’s wishes.

While distinct in function, wills and antenuptial contracts share common elements in terms of their legal status, customisation, protection of interests and significance in estate planning and family matters.

The significance of a valid last will and testament

A last will and testament is a legal document that outlines a person’s wishes regarding the distribution of assets, such as immovable property, money, shares, and other personal belongings after their demise. Despite its significance, many individuals delay creating a will due to feelings of invincibility or discomfort in confronting mortality. However, the advantages of having a will far outweigh any unease associated with the process.

In the absence of a valid will, assets are distributed according to the laws of intestacy, as outlined in the Intestate Succession Act of 1987. Drafting a will empowers you to precisely designate beneficiaries for your assets, ensuring your loved ones are provided for in line with your wishes. A meticulously drafted will also mitigates family disputes over your estate by minimising confusion and disagreements among beneficiaries.

For parents of minor children, a will enables you to appoint a guardian who aligns with your values to care for them in the unfortunate event of your passing, assuring their well-being and upbringing.

The importance of an antenuptial contract

Equally significant, yet distinct, is an antenuptial contract – an essential legal document concerning assets. If a couple fails to enter an antenuptial contract before their marriage, they are automatically married in community of property, wherein assets and debts are jointly shared. Each spouse holds an undivided half share of the joint estate.

An antenuptial contract is a pre-marital legal agreement that outlines asset ownership and division in case of divorce or death. Couples can opt for an antenuptial contract with or without accrual.

An antenuptial contract with accrual ensures separate ownership of assets during marriage while allowing for shared growth in the value of estates. Upon divorce or death, accrued value is equally divided, calculated from the date of inception of the marriage.

An antenuptial contract without accrual maintains complete separation of assets throughout the marriage, without sharing growth in asset value, regardless of marriage duration or circumstances of termination.

Open discussions about finances and expectations before marriage will foster healthy communication about money and future plans, promoting transparency, which is essential for a strong marital foundation.

In conclusion, both a will and an antenuptial contract fulfill distinct yet vital roles in honouring your wishes and safeguarding assets. Irrespective of age or wealth, drafting these legal documents showcases responsible planning.

Engaging legal professionals when composing a will or antenuptial contract ensures legal validity and alignment with your unique circumstances. Contact Kelly Barnett on 082 7760231 or email [email protected] for assistance with your legal documents.

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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.)

Kelly Barnett is an admitted attorney. She obtained her BA LLB degree from the University of the Witwatersrand. Kelly enjoys writing legal articles and researching different topics of law, with...

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