You may have a will but here are three questions you need to ask ...
1 Is it valid and legal?
2 Does it comply with the formalities and requirements?
3 Has it been updated regularly?
VALIDITY AND LEGALITY
A Will is a document that gives dignity to your financial affairs and regulates the orderly distribution of your estate in your absence.
Our law recognizes freedom of testation, as long as the provisions of the Will do not include anything illegal, immoral, or contrary to the Constitution. Accordingly a testator may dispose of his assets disinheriting his family and can deal with his estate as he pleases. However, one’s legal and contractual obligations and liabilities do not fall away and one’s family may claim maintenance even though they may be disinherited.
FORMALITIES AND REQUIREMENTS OF A WILL
Wills are administered by the Wills Act, 7 of 1953 (as amended) and prescribe certain formalities for a Will to be valid. Failing absolute compliance with the requirements of the Wills Act will result in the Master of the High Court discarding the Will and the deceased’s estate devolving in terms of the Intestate Succession Act.
Your Will should record your intentions in a simple and practical document which is easy to understand and execute.
The requirements of a valid Will are as follows:
- Any person over the age of 16 may make a Will provided that person is not mentally ill and is capable of understanding the consequences of their actions.
- The Will must be in writing (by hand, typed or printed).
- The person making the Will, known as the testator (male) or testatrix (female) must sign the Will at the end thereof.
- The signature of the testator/testatrix must be made in the presence of two or more competent witnesses. A competent witness is any person over the age of 14 and who is at the time of witnessing the Will not incompetent to give evidence in a court of law.
- The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other.
- If the Will consists of more than 1 page, each page other than the page on which the Will ends must be signed by the testator/testatrix anywhere on the page.
- The Will must be signed and witnessed in the presence of a Commissioner of Oaths who will certify the Will as soon as possible.
UPDATING A WILL
Once your Will has been made, it can be revoked/withdrawn/cancelled or amended by you provided certain formalities have been complied with, at any time before your death.
In terms of South African Law, If a person dies having a Will, but the Will does not dispose of his entire estate, then such a person will have died partially testate and partially intestate. The assets that have not been dealt with in the Will, will devolve on the testator’s intestate heirs as determined by the Intestate Succession Act 81 of 1987.
It is therefore advised that your will should be updated regularly to include your entire estate at any given time.
CONTACT US TODAY TO DRAFT YOUR WILL OR TO ENSURE THAT YOUR CURRENT WILL IS VALID, LEGAL AND UPDATED!