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by Liam Doyle

Wills and Testaments: How They Came To Be

A will is a legal document that lays out what is to be done with an individual’s property in the event of their death. The person drawing up a will (known as a testator) is the one who decides what is to be done with their property (estate) after they pass away. They also appoint who will be managing these affairs after their death (this person is known as the executor).

 

These documents have become known as a “last will and testament” under the mistaken belief that “will” referred to physical property (such as pieces of land) while “testament” referred only to personal property (all other items, such as clothes, jewellery and/or furniture, and so forth). These terms have, in fact, been used interchangeably, and a valid will therefore applies to everything owned by a deceased person, be it personal items or landed property.

 

A brief pre-history of wills

 

Many cultures have had the practice of destroying the property or items of the departed, in order to ward off bad magic or other nefarious spiritual forces after a death. In some instances the home of the deceased would be abandoned, sometimes indefinitely. Other practises have included sending the personal effects of the late owner away to distant relatives, also with the idea to put distance between the living and the dead’s influence on each other.

 

Conversely, rules, laws and regulations of inheritance have also been seen ever since antiquity. For example, about 3000 years ago, the Law of the ancient Israelites made provision for how land and possessions were to be divided between a man’s descendants. It included specific provisions of equality made for families that only had daughters.

 

Inheritance customs have been very diverse, with many following the principle of the oldest son being the primary person to inherit the father’s belongings. Other peoples also gave equal share to daughters, and others follow the practise where the youngest daughter is the chief beneficiary. Still others make no distinction based on the sex of the children, just the birth order.

 

In Africa, there were fairly sophisticated systems in place for the distribution of what we would call the moveable property, since livestock formed such an important part of a family’s possessions.  

 

In many parts of the world, these and other varied customs are still in effect, and will be so for generations, if not centuries, to come.

 

The development of the modern will

 

Much of the modern notions of the philosophies and legalities governing wills can be traced back the ancient Greeks and Romans.

 

The Greek statesman Solon made it possible for Athenian male citizens aged twenty and upwards to make wills. Already the notion that a person making the will should be of sound mind was present, as well as the forbidding of undue influence from any other party in the stipulations of the testator. However, unlike modern wills, only males could inherit from other males.

 

In most cases several witnesses would observe the signing of the will. They would place seals on the will to confirm its legitimacy, and the will would then be given to the trustees – placed in their hands – giving them the responsibility of seeing that the will was carried out.

 

Early Roman wills could not be easily changed and were only applicable to property that was owned when the will was written up. Under Roman law any debts that were current passed to the deceased’s heir.

 

By about AD 550, the minimum age to make a will in Rome was fourteen for males and twelve for females. Testators were required by law to provide for their children. While modern wills can exclude children at the testator’s discretion, Roman wills did not give them this option, except in certain cases of misconduct.

 

After a long process of development, it was in the 1800’s that wills as we would recognise them today began to emerge. Witnesses were still required, but all property could be disposed of in the testament, and people could change their wills or revoke earlier wills as they saw fit.

 

Wills in South African Law

 

In South Africa, wills are regulated by the Wills Act 7 of 1953. This lays down the requirements for a will to be legally binding.

 

Anyone who is 16 and older can produce a valid, legally binding will in this country. A will must be in writing, which means it can be either typed, printed or handwritten. If it is written out by hand, the person writing it out must not be mentioned as a beneficiary by the testator in that will.

 

The testator must sign the bottom of each page and sign on the last page for the will to be valid. This must be done in the presence of two competent witnesses, who must also sign on the last page. The witnesses do not need to understand the contents of the will, but must be able to affirm that the testator signed the will as detailed above.

 

Anyone who is fourteen years or older can be a fit witness on a legal document in South Africa. The witnesses should not benefit from the will, as this could be considered a conflict of interest and might lead to their disqualification from the benefits of the will.

 

Make sure that the will is dated, written in straightforward and unambiguous language and that there is no misuse of legal terms. It is advisable to seek qualified, expert advice in the drafting of a will, so that your wishes are followed in order to ensure that your property is divided and disposed of as you desired.

 

In the unfortunate event of a divorce, a will should be updated within three months of the split being legally finalised. If the testator dies within this three-month period, the ex-spouse will still be the beneficiary of the inheritance according to the existing will.

 

It is possible to change a will. This can be done via a codicil, which is an annexure to an existing will. It must conform to the stipulations of wills as outlined above, and also needs to be signed by two witnesses, though the witnesses do not need to be the same people who signed the original will.

 

The other way to update a will is to draft and sign a new will which explicitly states that all other wills are invalid. This effectively renders the original will null and void. This is why dating a will is so important.

 

There are more important details when it comes to drafting wills and would encourage you to be in touch with us to ensure that a will is drafted correctly. But the last thing we will mention here is that it is vital to keep the original in a safe place, since copies of wills are not recognised as valid wills in South Africa.

 

Morebo: helping our clients generationally

 

Morebo is passionate about seeing our clients ensure that they have peace of mind by offering clarity and instruction on the disposal of their assets in the event that they are no longer present to manage their estate.

 

We have written about the importance of having an up-to-date and valid will in place and the challenges that arise when a valid will is not in place. One particular real-life horror story comes to mind, involving a single mother with her young child.

 

Don’t let this happen to you. We are here to help you with your succession planning, making sure that your hard-earned wealth goes to the cause or loved ones you want to take care of in your absence. Contact us today to discuss estate planning and to make sure that your will does exactly what you wish it to do when you leave your legacy.

 

Bibliography/Further reading:

 

https://hoplerwilms.com/blog/2016/04/24/history-of-wills-part-1-ancient-wills/

 

https://hoplerwilms.com/blog/2016/04/25/history-of-wills-part-3-ancient-wills/

 

https://www.eqt.com.au/-/media/equitytrustees/files/legal-profession/sir-ninian-stephen-lecture-papers/a-brief-history-of-inheriatance-through-the-ages.pdf

 

https://brill.com/view/book/9789004461444/BP000010.xml?language=en

 

https://www.legalwise.co.za/help-yourself/legal-articles/requirements-valid-will

 

https://www.justice.gov.za/master/wills.html

 

https://www.lexisnexis.co.za/blogs-data/categories/rule-of-law/what-is-a-will

 

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

 

https://www.gov.za/faq/justice-and-crime-prevention/intestate-succesion

 

https://www.westerncape.gov.za/service/making-will

 

https://www.westerncape.gov.za/general-publication/deceased-estates-wills

 

https://www.golegal.co.za/draft-valid-will-10-steps/

 

https://www.legalwise.co.za/help-yourself/legal-articles/requirements-valid-will

 

Helpful summary:

 

https://www.newworldencyclopedia.org/entry/Inheritance_(Sociology)

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