Be sensible and will yourself to draft a will
While responsible people wisely prepare for a worst-case scenario by taking out insurance policies, for example, to ensure their families are financially taken care off in the event of their sudden death, the number of individuals still neglecting to draft and keep an updated Will is surprisingly high.
Life is unpredictable. We are never provided with a boarding pass in advance indicating the date of our arrival at Airport Earth’s departure lounge.
Calls for your final flight can be quite sudden, a reality the global Covid-19 pandemic has certainly emphasised in recent times.
While responsible people wisely prepare for a worst-case scenario by taking out insurance policies, for example, to ensure their families are financially taken care off in the event of their sudden death, the number of individuals still neglecting to draft and keep an updated Will is surprisingly high.
The consequences are dire if you fail to do so.
Death is obviously not something we like to think about and prefer to avoid the subject, often postponing getting our affairs in order.
But when the Grim Reaper comes knocking – hopefully much later, but it could be sooner – it will be much more than just insurance policies and hard cash at play.
It will also be about you possibly losing control over the distribution of your valuable assets if you haven’t left behind a proper Will (also called a testament) in which you clearly stipulate your wishes.
This is by far is the most important benefit of having a Will. Legally this is referred to as the Freedom of Testation, meaning you determine to whom you bequeath your assets.
In the absence of a testament, one’s estate will be distributed according to the terms of the Intestate Succession Act 81 of 1987, which in essence means your closest blood relations will receive your divided estate.
This may not match your intentions as you may want to bequeath certain items to certain people who are not blood related, such as a childhood friend or a business partner.
Therefore, if you want to be in charge of your asset distribution when you are no longer alive, write a Will – the sooner, the better.
It also allows you as a parent to elect a suitable guardian if both you and your spouse die simultaneously.
How your assets will be utilised by the guardian for the benefit of your child will be determined by you in the Will.
The importance of this cannot be emphasised enough.
As parents you ideally want to appoint someone with integrity who will care for your children, guiding them through life while administering your assets properly until your children come of age.
If you neglect to do this, the High Court of South Africa will elect a guardian for your children.
Preventing conflict is another crucial benefit of a testament. Each family member is likely to have different opinions as to who is deserving of what.
A good example would be a house administered in terms of the Intestate Succession Act and not a Will.
Some beneficiaries may want to sell the house to get the cash, while others would want to hold onto it as a long-term investment.
So, by clearly expressing your wishes, you will eliminate unnecessary squabbles and provide you and your loved one’s with peace of mind.
Requirements of a valid Will
This can be found in the Wills Act 7 of 1953, section 2(1), but in simple terms the formalities required to draft a valid will are:
- It is in writing and signed by the testator (16 years or older), or by a person given permission by the testator and signed in his or her presence.
- It is signed by two or more competent witnesses at least 14 years of age or older who will be able to give evidence in a court of law.
- Each page must be signed by the testator. A Commissioner of Oaths must verify the legality of the document if the testator signs by means of a mark and not a signature, or if someone else signs on behalf of the testator.
Where a Will does not fully comply with all these requirements, a court satisfied that a document was intended to be a Will, can order the Master of the Court to accept it.
Drafting of a Will
Approaching a legal practitioner to help you draft a Will is the better option.
Attorneys understand the nuts and bolts and can bring to your attention possible problematic issues they can foresee and help prevent.
Law practices, regardless of what they specialise in, draw up Wills for free in many cases (especially if you are a pensioner), or at very affordable fees depending on the complexity of your estate.
During National Wills Week in September, the drafting of wills are also done free of charge.
Given the information above, the only sensible thing to do is to draw up a Will without delay – and review it on a regular basis as your situation or asset base changes.
About the author: Kivendhren Moodley has completed a LLB degree with Unisa and has 3 certificates in law. He resides in Verulam and is preparing for his board exams in Contract Law with Harvard University.
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