By Colin Horwitz
Let me start by simply stating that there is nothing requiring a person to have a Last Will and Testament! However, if you do go down this route, beware. The Law of Intestate Succession will apply and there will be, without a doubt, people who will inherit part of your estate that you most definitely had no intention of enriching.
Surely, every one of us wants to ensure that the things that we have taken a lifetime to accumulate do not end up in the wrong hands.
A properly drawn up Will can make the passing of your precious belongings to your heirs easy and simple.
What are the most precious things in your life?
Surely the answer is simple; they are the people you love and the things, of whatever kind, which you have collected during your lifetime.
Apparently, although I cannot say with any certainty, but traveller’s cheques are not accepted on the other side and apparently there is no luggage space either.
So, whilst you cannot take any physical possessions along, you can decide as to what precious possessions will go to which precious people.
This involves drawing up a Last Will and Testament. This need not be a complicated thing to do, but it is advisable to get some professional help. By doing this properly you will be saving a lot of heartache and maybe even fighting, for those left behind.
The custom of writing a Will is a legacy of the roman legal system that was adapted under the roman dutch law and imported to South Africa by Jan Van Riebeeck.
Written Wills were the accepted means of regulating inheritances. The roman legal system also recognised private ownership as distinguished from tribal ownership, which reinforced the need by individuals to have Wills.
Thus, a Will is the most basic mechanism of Estate Planning.
Let us look at the Will “document” itself.
A Will is more than just a signed document, prescribing what is to be done with assets after your death. Wills and legacies afford such opportunities for fraud, the legal requirements for the drawing up of a will are very strict.
- First, the Will must be written. Oral bequests are worth nothing.
- Secondly, for a Will to be valid, it must be signed with a full signature at the end of the document by the testator(s), (i.e. the person making the will) and two competent witnesses. All three must sign in each other’s presence. Since 1 October 1992, if the will comprises more than one page, only the testator needs to sign the other pages. The witnesses are no longer required to sign them. The witnesses must be at least 14 years of age and be able to give evidence in court.
- Thirdly, neither of the witnesses nor their spouses may benefit under the Will (there are some exceptions relating to soldiers on active service).
Who can make a Will?
Any person of the age of 16 years and over may make a Will provided he or she is capable of appreciating the nature and effect of his/her acts.
Can a Will be revoked?
Yes, if a court is satisfied that the testator has made a written indication on the will or performed any other acts to the will which is apparent, or if the testator has drafted another document by which he or she intended to revoke the will, the court will declare the Will to be revoked.
What is the effect of divorce or annulment of marriage on a Will?
If a testator dies within three months after his or her marriage was dissolved by a divorce or an annulment by a court and that person executed a Will before the date of such dissolution, the ex-spouse will not inherit. If the person dies more than three months after the dissolution of the marriage, and no new Will has been drawn up, then his or her previous spouse will inherit in accordance with the provisions of that Will.
What happens if a Will is lost?
The court can still put things right if there is proper evidence as to what was written in the lost Will (e.g. if a copy of the lost will is still available).
It is very difficult to anticipate questions and then provide answers. So if you have any, please e-mail us at firstname.lastname@example.org and one of our qualified consultants will be only to happy to assist you.
Last bit of advice do not wait, the consequence of delay may be something you never envisaged.