The Importance of Having a Properly Drafted Will

By 14th Sep 2018Aug 14th, 2019Family and Matrimonial Law

THE IMPORTANCE OF HAVING A WILL:

What is a Will?

A will is a legal document, executed by a person who is 16 years or older, that sets out their final wishes pertaining to, amongst other things, the distribution of their assets upon their death.

One of the cornerstones of the Law of Succession in South Africa is the principle of freedom of testation, which means that, a person’s wishes, as set out in their will, must be carried out as far as legally possible and a court will not lightly interfere with their wishes, subject to certain limitations.

Despite this, more than 83% of people in South Africa die without having executed a will and there are many things that people do not know about how their wills must be drafted and what they must contain in order to be valid. This article attempts to shed some light on this so as to prevent the hassle and heartache that could arise out of a person failing to conclude or a will being deemed to be invalid.

Why having a valid Will is important:

  • By having a valid will you can choose how your assets will be divided, thus putting you in a position to ensure your loved ones are financially taken care of after your death.
  • In your will you can nominate the beneficiaries that you wish to inherit your assets as well as the percentage or portion of your estate that each beneficiary will get upon your passing. You can also nominate alternate beneficiaries in the event that the first nominated beneficiaries cannot or will not accept the assets bequeathed to them in your will.
  • Apart from choosing beneficiaries and what portion of your estate they will get, a will also allows you to place conditions on the beneficiaries before they qualify to enjoy the benefit, and how they may or may not use the benefits of their inheritance, subject to certain limitations.
  • You are put in the position to nominate an Executor of your choosing. The Executor of a deceased estate is responsible for administering the estate, which entails, amongst other things, settling accounts and the distribution of assets (after settling liabilities) in accordance with the your wishes as set out in your will.
  • You may also set out in your will that the Executor is exempt from furnishing security to the Master of the High Court (security is furnished to the satisfaction of the Master and will be forfeited by the Executor if he/she defaults in the proper performance of their duties).
  • If you have minor children, you can set out who will be the Guardians of your children in the unfortunate event of your death.
  • A will can, and should be updated any time before your death which allows you to, among other things, add/remove beneficiaries and assets so as to accurately reflect your wishes as your life changes. Updating your will is especially important in the instance of divorce as the Wills Act 7 of 1953 gives newly divorced parties a three month grace period in which they assume that the divorced parties no longer wish for their ex-spouses to inherit. Accordingly, if one of the divorced parties dies within 3 months of the date of the divorce, the will is interpreted as if the surviving ex-spouse died before the deceased, and the estate will be distributed accordingly. If however the divorced party fails to amend their will or draft a new one within three months from the date of divorce, it will be assumed that he/she wishes their ex-spouse to benefit as per the will.
  • Having a will assists in avoiding lengthy delays in the administration of your estate and will limit the potential for any disputes arising between your loved ones as to who should get what from your estate.
  • You can also include a ‘living will’ within your will which is a directive which states that you refuse to consent to any medical treatment which will keep you alive by artificial means when you are no longer competent to express such wishes. (This may or may not be deemed to be binding on medical practitioners but are worth including so that your family members know your wishes if they have to make these types of decisions.)
  • The drafting of a valid will can also serve as a tax saving tool in that your estate duty can be reduced by means of, among other things, bequeathing assets to your surviving spouse or charities.

Consequences of not having a valid will:

If you die without a valid will in place the following consequences will ensue:

  • Your estate will be administered in terms of the Laws of Intestate Succession. This means that your estate will be divided up amongst your loved ones according to the line of succession, as set out in the Intestate Succession Act 81 of 1987, with each person receiving a fixed and equal proportion. This division may not be practical and could see a portion of your assets being given to someone you don’t know, or even like.
  • If you die intestate (without a valid will) and the value of your estate exceeds R125 000.00, the Master will appoint an Executor in consultation with your family members. This process can be costly and cause disputes which in turn delay the process of administering your estate. Moreover, the estate is frozen during this process therefore placing a burden on your dependents who may need to access your accounts.
  • If you do not have a valid will and leave behind minor children, their inheritance will be paid into the Guardian’s fund until they reach the age of majority (18 years old). Thus they cannot access the benefits left to them until they are 18 which inevitably prejudices them. Moreover, from a practical perspective, if a parent dies and leaves a valuable asset, the spouse and major children who also stand to inherit may have to sell the asset in order to raise the money to pay into the Guardian’s Fund.
  • Further, if you have minor children and die intestate and there is no surviving parent of the minor children, the State will decide with whom guardianship of your children vests.

Can you draft your will yourself?

Whilst a person may draft their own will it is not recommended as drafting a will requires an understanding of the legal processes entailed. Thus a person who drafts a will without the requisite knowledge may unwittingly draft a will that is invalid. A will can be deemed invalid for reasons such as not having the will signed correctly, signing in the incorrect place or having people who are not competent signing as witnesses, as set out in the Wills Act.

Moreover, a person without the requisite knowledge of drafting a will may draft clauses that are ambiguous which could result in lengthy and costly legal proceedings ensuing between your loved ones. Furthermore, although it will not affect the validity of your will, there may be instances where a person nominates a beneficiary in their will but that nominated person also signs as a witness, which could result in that nominated beneficiary losing their inheritance altogether.

It is therefore highly recommended that not only do you have a will in place in case of your death but that you seek assistance from an Attorney in drafting your will to ensure that it is valid and free of ambiguities.