Your last will and testament
Guidelines for drafting a valid will.
Anybody over the age of 16 can draw up a will. In order for the will to be valid, you need to be of sound mind and body. This means that you need to understand the process, why you are drawing up the will, to be able to say what items you own and to whom you want to leave them.
You can prevent unnecessary and unwanted family disputes after your passing by drawing up a last will and testament stating who the heirs of your possessions and property should be. A will is a legal document drawn up in terms of the Wills Act 7 of 1953, as amended.
Dying without a will is called ‘dying intestate’. Your property will be divided up as determined by the Intestate Succession Act 81 of 1987. Firstly only your spouse if you have no children, then a certain monetary amount specified by the Act to your spouse and the residue equally between your children. If you have no spouse or children then it will go to your parents in equal shares. If they are predeceased, other blood relatives. If you have no heirs, your property will go to the government. Dying without a will can cause tension and distress within a family as family members wrangle over who gets what. Winding up the estate can take much longer and incur additional costs.
Drawing up a valid will
A will also needs to contain important information to make it valid. Although not a legal requirement by law, it is beneficial to have an attorney draft your will to ensure accuracy and completeness and to avoid any future disputes. You can also appoint the attorney to be the executor of your will. He or she can act alongside another executor – a friend or family member.
- Your will must be in writing.
- You need to declare that you are of sound mind and body and are not being forced by another person to make the will.
- The word ‘last’ in the term ‘last will and testament’ is important as it revokes all previous wills you may have made.
- It must be signed by you and in the case of a joint will, the other testator or testatrix.
- You must sign the will in the presence of two witnesses who also sign in the presence of each other. Witness may not be beneficiaries of the will and must be older than 16 years. The will must be signed directly after the last paragraph of the document – not the end of the page. Your will may be declared invalid if the gap is too large.
- You and the witnesses must initial every page of the will. Some attorneys prefer a full signature on every page.
- Choose the beneficiaries of your will – the people who will receive your possessions and property. Decide on how these should be divided up and who gets specific items.
- List any bequeaths you want to make to charity.
- Nominate an executor of the will.
- Nominate a guardian for any minor children.
- If you have pets, nominate a guardian to take care of them.
- Include details about your funeral – list any specific things you would like to include for the service.
- State whether you want to be buried or cremated.
- Include a testamentary trust deed if any of your beneficiaries are minor children who will not be able to inherit directly.
What is an executor?
The executor of a will has an important role to play in the execution of your wishes. He or she must ensure that all debts are settled and your assets are sold or divided up as prescribed in your will. You can nominate a family member or an attorney or both as executor. Unlike the witnesses, the executor can be a beneficiary of the will. If you don’t nominate an executor, one will be appointed by the Master – usually a family member.
Guidelines
- You can keep your will in a safe at home or lodge it with your bank, attorney, financial advisor or accountant. It is always a good idea to tell the executor and a close family member and/or friend where your will is. You can keep a certified copy of the original at home but it must be clearly marked ‘copy’. Indicate on the copy where the original is.
- Spouses married in community of property can draw up a joint will but it is advisable to rather have two separate wills that mirror each other. If you are married with an anti-nuptial contract, you will need to draw up separate wills.
- If you already have an existing will you can add a codicil to make a change or include a new beneficiary. The same legal requirements for the original will are required for the codicil to be valid and the witnesses who signed the original must sign the codicil. If there are significant changes it is better to draft a fresh will.
Resources
- Checked by Arinda Truter, SchoemanLaw Inc., www.SchoemanLaw.co.za
- www.Gov.za
- www.Justice.gov.za
- www.StandardBank.co.za/StandardBank/