19 Jul Do You Have a Valid Last Will and Testament?
TO WILL OR NOT TO WILL? THAT IS THE QUESTION…
Death is not the most comfortable topic to address with loved ones, but it is necessary. This prompts the question, “Do you have a valid Last Will and Testament?”
A Last Will and Testament is defined as a legal document that indicates your final wishes pertaining to your assets and provides specific instructions on how these assets should be distributed upon your passing.
In South Africa, there are two regimes that must be considered – Testate and Intestate Succession.
Testate succession is when the assets are distributed according to his/her wishes, as stated in their Last Will and Testament. This document must be validated accordingly to the Wills Act Number 7 of 1953.
Intestate Succession is when assets are distributed without a Last Will and Testament. This process is regulated by the rules of the Intestate Succession Act Number 81 of 1987.
To assist our clients and readers, we answer a few frequently asked questions regarding wills:
- Is having a validly executed Will that important?
- What if I am blind or illiterate?
- What if the document is not neatly typed in Word format or it is scribbled by hand?
- Should there be witnesses?
- What if I bought one of those “blank Wills” from an accredited store down the road, without an Attorney assisting with the drafting thereof?
- Is the Original Last Will and Testament important?
- What if I adopted kids? Will they inherit under Intestate Succession?
- What if any of my descendants renounce a benefit given to them under Intestate Succession?
- What if any of my descendants are suspected in my death?
Let’s get right into it…
1. Is having a validly executed Will that important?
Absolutely! Your Last Will and Testament allows you and all your family and friends to have peace of mind that your estate and those involved within it, is under control.
If not, there is the option of winding up the estate according to Intestate Succession.
The Act applies according to the rules of survivorship. This means that whoever is a descendant of the testator by affinity (by marriage), or continuity (blood relations) will inherit from his/her estate.
2. What if I am blind or illiterate?
No problem. The Act makes provisions for persons who require assistance when signing the Testament by allowing a Commissioner of Oaths to be present whilst the document is being signed by way of a mark or thumbprint.
3. What if the document is not neatly typed in Word format or it is scribbled by hand?
This is also fine. It is preferable to have your last wishes within a clearly written or typed, unambiguous document. However, the legislator is aware that not everybody has access to technology. Therefore, a hand-written document is perfectly valid, so long as the document is signed according to Section 2 of the Wills Act Number 7 of 1953.
4. Should there be witnesses?
Yes. A minimum of two witnesses who are 14-years or older must simultaneously sign the Testament in the presence of the testator. The purpose of the witnesses is for them to confirm the testator’s signature and their own. If the document extends to more than one page, both the testator, witnesses, and commissioner of oaths (if applicable) must sign all pages. Persons who inherit in a Last Will and Testament would not be able to witness thereof.
5. What if I bought one of those “blank Wills” from an accredited store down the road, without an Attorney assisting with the drafting thereof?
To each store their own, however we would suggest a more personal note per Testament. Generic Last Will and Testaments have generic clauses. Whereas with the assistance of an Attorney, the testator can make an informed decision on each clause, whilst having sound legal advice at their disposal.
6. Is the Original Last Will and Testament important?
Yes! The Original Last Will and Testament is the only document that the Master’s Office (an institution that regulates the finalisation of all estates) will accept as proof, executed by the testator. If you do not have the Original Will, an application on the document’s validity must be brought to the High Court of South Africa. This process is costly and time consuming, so it is advised to rather keep all Testaments under lock and key.
7. What if I adopted kids? Will they inherit under Intestate Succession?
Yes. The Act does not differentiate between biological and non-biological children, so long as there is supporting documentation to prove the adoption. The adoptive child will be deemed to be the descendant of his/her adoptive parents.
8. What if any of my descendants renounce a benefit given to them under Intestate Succession?
Any benefit that is renounced will then fall upon the descendants next lineage of descendants. “Renounced” is defined as giving up your right/claim to any benefit that would have been inherited by the deceased.
9. What if any of my descendants are suspected in my death?
Disqualified! Any party proved to be involved in the death of a testator will automatically be disqualified from any form of inheritance within his/her estate.
We have limited control over what happens within our lives. We can, however, control the legalities that regulate our affairs.
For assistance and more information, contact Mari Steenekamp, our Head of Estates, Wills and Trusts – 021 976 3180