At Morebo we are passionate about seeing our clients grow their wealth. We also want to see them leaving a lasting legacy beyond their lifetimes. To this end, we look beyond short-term success, and encourage our customers to consider a multi-generational approach to their finances. This means that estate planning, in all its various facets, is a high priority for us.

We guide our clients to think through the difficult scenario of what would happen when they are no longer there to provide and care for their families in person. We also want to assist them to ensure that the wealth they have worked so hard to accumulate is distributed as they intend it to be.

Wills: the backbone of estate planning

Having an up-to-date will in place is the vital first step in effective estate planning, and a necessary step in the process of ensuring that your loved ones are well taken care of when you are no longer here in person to do so. Having a will also means far more peace of mind for you and those to whom you want to bequeath your estate. This can include members of your family, your friends or even charitable or other organisations you might want to support.

The sad fact is that it is estimated that over 70% of South Africans do not have a valid will in place. This can lead to a very frustrating and even detrimental situations for those you care about most, on top of the grieving process that they will be working through. The absence of a will means it will take much longer and be even more emotionally draining a process for your loved ones as they attempt to wrap up your estate.

A will ensures that your assets are disposed of as you see fit, to the beneficiaries that you desire, rather than being divvied up according to a set formula devised of by the state. It is in the best interests of your dependants that you have a valid and up-to-date will in place.

What is the difference between Wills and Living Wills in Estate Planning?

An important aspect of estate planning is making provision for yourself should you fall ill or become incapacitated. At Morebo we can advise you on how best to provide for your own needs should you find yourself unable to work indefinitely due to a dread disease or other scenarios.

Another side of this is to ensure that your wishes are carried out in the event that you are unable to speak for yourself. If you are involved in a near-fatal accident that leaves you on life support, what do you wish to have happen? Do you want to be kept alive by the machines, or do you want to be allowed to be taken off life support?

This is what a living will, or advance directive, aims to achieve. It is put in place to inform others what you want to happen to you in the case that you cannot express yourself. It differs from a will in that a will is only implemented after your death, while a living will comes into play while you are still alive but cannot speak for yourself.

A simple way to differentiate is to say that a living will takes care of yourself, while a will takes care of your stuff.

A living will is in place to take care of yourself: what happens to you while alive but immobilised and unable to communicate.

A will takes care of what you own after you pass away. It explains how you want your estate disposed of when you are deceased.

Even if you have no particular desires for what happens to your all property when you die, and have no desire one way or another regarding life support, putting these documents in place will help your family to navigate your passing, and will minimise the chances of conflict between members of the family.

Living wills in South Africa

Section 12 of our Constitution says that “everyone has the right to bodily and psychological integrity.” Included in this statement is the right to control over an individual’s own body. As such, the law recognises that all patients retain the right to either accept or decline treatment from medical professionals. 

While South Africa’s statutory law does not yet recognise living wills, both the Health Professions Council of South Africa (HPCSA) and The South African Medical Associations (SAMA) recognise the patient’s right to refuse treatment. The HPCSA has also stated that where a patient has a living will in place, it will be honoured. It is considered best practise that if a doctor believes they cannot conscientiously honour a living will, to rather refer the patient to another doctor.

Living wills can direct doctors to withhold treatment. They cannot, however, ask for physician assisted suicide or euthanasia. So, your living will can direct medical professionals not do administer medical care, but they cannot ask anyone to end your life.

A living will helps your family to make the decisions on your behalf that they might have to make. They will be able to direct the affairs pertaining to your medical treatment knowing what is or is not most important to you.

Living wills are becoming increasingly popular in South Africa. Their benefits show why this is the case.

What is the difference between a Living Will and a Power of Attorney?

Power of attorney allows a specified third party to legally act on your behalf and make decisions for you. This can be either in all matters (general power of attorney) or in specific instances and scenarios (special power of attorney).

So while a living will gives directives as to what your wishes are in the event you are unable to communicate, a power of attorney allows someone else to make decisions on your behalf.

Power of attorney is often given by the elderly when they begin to become too frail to sign documents. But as noted above, it can be applied to broader scenarios and events.

While the exact legality of a living will might still be discussed as seen above, there is no dispute when it comes to a Power of Attorney. It is a legally binding document.

However, and this might come as a bit of a shock: in South Africa, power of attorney lapses when it might be considered most important. If someone dies or becomes mentally incapacitated, power of attorney lapses.

This is why having a will and living will is so important. They will determine what happens to your estate and to you personally in the most stressful scenarios your family could be facing.

Succession Planning – Vital but often overlooked in Estate Planning

While the first thought that comes to mind with estate planning is the distribution of personal wealth and assets, the professional aspects to a person’s estate must also be considered. That is to say, what happens to someone’s stake in a business should they die has often not been formulated and very few businesses (less than 20% of SME’s) have a clear process to follow should tragedy strike.

Comprehensive estate planning will take this unfortunate scenario into consideration and will make provision for what will happen to your business or share of the business in the event of your death.

Call Morebo today to ensure effective Estate Planning

Morebo is there to help. We are able to help you directly with your estate planning, and have a network of experts that we could refer you to if necessary. We want to ensure that your estate continues to benefit those for whom you worked so hard to build it long after you are at peace.

PLEASE NOTE: This article is for informational purposes only. It should not be taken as advice in liue of speaking to a financial or estate planning advisor. Before acting on the information contained in this article, we recommend that readers consult an expert on the topics raised. Contact Morebo today for more details on any of the issues raised in the article. Our consultants can assist you ensuring that all the facets of your estate planning are correctly in place, and that your family and loved ones are well taken care of in your absence.

Bibliography/Further Reading:

https://www.news24.com/fin24/money/wills-and-trusts/over-70-of-working-south-africans-dont-have-a-will-heres-how-to-get-yours-for-free-20190915

https://www.legalwise.co.za/help-yourself/legal-articles/dangers-not-having-will

https://www.moneyweb.co.za/financial-advisor-views/the-value-of-a-living-will/

https://www.moneyweb.co.za/financial-advisor-views/faq-about-wills-living-wills-and-powers-of-attorney/

https://www.lifetags.co.za/latest-news/do-you-need-a-living-will-how-it-works-in-south-africa/

https://www.polity.org.za/article/the-legal-recognition-of-living-wills-2020-11-26

https://www.samedical.org/images/attachments/guidelines-with-regard-to-living-wills-2012.pdf

https://www.medicalprotection.org/southafrica/casebook-and-resources/factsheets/factsheets/sa-living-wills-advance-directives

https://dignitysouthafrica.org/why

Living Wills: What is the Current Legal Status in South Africa?

https://www.posticbates.com/blog/will-vs-living-will