June 26, 2024
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There is no secret that the most neglected and least thought of legal document is a will. This is evident considering statistics show that 70% of the South African working population do not have a valid will in place.
Simply, if you have something to leave behind and someone who can receive it, a valid will is needed, enabling you to secure your financial legacy without leaving it to the laws of Intestate Succession to determine who will inherit your assets.
South Africans are afforded the right to freedom of testation, which means that we have the ability to decide, within limits, exactly where and to whom our assets are to be allocated upon our demise.
Two things in life are certain – DEATH and TAXES. It is disconcerting how we neglect to plan for inevitable occurrences, particularly where consequences can be detrimental to our dependants’ financial future.
By having a will in place, you are able to plan your estate according to your own wishes and needs and ensure that the process of distribution of your assets to the beneficiaries is a quick and painless one.
WHAT CONSTITUTES A VALID WILL?
There are several legal formalities prescribed in the Wills Act 7 of 1953 which need to be met in order for a
will to be rendered valid. In summary, a valid will must:
WHAT FACTORS SHOULD BE TAKEN INTO CONSIDERATION WHEN DRAFTING A WILL?
Adhere to the strict legal requirements when drafting a will.
Failing to do so could have a negative impact as to the validity of your will.
Who will take care of your minor child; (younger than 18 years)?
If your minor child does not have a natural guardian, it is important to nominate someone to act as a guardian to your minor child/children. If you have no will in place, it is quite possible that your child may end up
with a guardian not of your choosing.
What happens when a minor inherits?
One needs to be careful when leaving assets to children under the age of 18, as they will require a guardian
to sign any documents on their behalf and, most important, are not able to receive their benefit until such
time as they reach the age of majority. In this instance one should consider a testamentary trust (if you do
not already have an inter vivos trust in place) to be created to administer assets in your child’s best interests and to avoid all assets being liquidated. This will also avoid their inheritances being placed in the
Guardians Fund, which is administered by each Master of the High Court, and which is only released to
them on reaching the age of 18 years. The trust will give you greater control as to how your minor heirs will
benefit from their inheritance. When creating a testamentary trust, you need to ensure that all provisions
relating to the appointment of the trustees and their powers are clearly defined, as your will ultimately
becomes the trust deed.
Have you done effective estate planning?
If done right it could reduce estate duty and also ensure that there is sufficient liquidity in your estate to
cover the costs of winding up the estate and for distribution of specific bequests. Always ensure that you
are able to provide for your loved ones in respect of immediate expenses that they would need to settle,
e.g. funeral and household expenses and medical bills.
Changes to your personal circumstances will require you to review your will – marriage, divorce, birth of a
child or death of a loved one.
The effect of a divorce can be detrimental in the event that you failed to review your will and you do not
wish for your ex-spouse to inherit. In terms of Section 2B of the Wills Act, in the event of a divorce and
where you die within three months of the divorce, it will be given effect that your former spouse had died
prior to the dissolution of the marriage. However, if you pass away more than 3 months after the dissolution of the marriage and you have not amended your will, your former spouse, if still mentioned in the will,
is considered to be the intended beneficiary of your estate.
