Where there is a Will there is a way, where there is no Will there is a relative.
During this global pandemic, you may have started asking questions such as: What if something was to happen to me? Would my family be OK? Perhaps without knowing it, you have started the process of Estate Planning. In this article, we look at one aspect of estate planning – the Will.
What happens if you die without a Will?
A common belief is that if you die without a Will, your assets go to the Government. This is not, in fact, the case. In South Africa, we have a piece of legislation called the Intestate Succession Act. This Act determines how your assets are distributed if you do not make a Will before you die. Essentially, the order of distribution is firstly your Spouse and Children. If you, however, do not have a spouse or any children, it will go according to your blood relatives (starting with your parents, then your siblings, then other relatives).
Should you not have a Will, it is your responsibility to read the Intestate Succession Act to make sure that you agree with the way your estate will be distributed. For example, this Act makes accommodation for cases where the husband is deceased in a polygamous customary union, whereby all spouses and descendants will inherit the estate in equal shares.
If you do not agree with the way your estate will be distributed in terms of this Act, for reasons such as customary or religious law, this is one of the reasons why it would be advisable to draft a Will.
1. What is a Will?
In South Africa, a person has freedom of testation. What this means is that you can deal with your assets when you die in the manner that suits you, as long as it is not against the public interest. In addition to determining how your assets are distributed, a Will also allow you to nominate an Executor (the person who will step into your shoes and handle your assets after you die) and a Guardian (the person who will look after any minor children).
2. Who can draft a Will and what are the requirements?
Anyone who is over 16 years of age and of sound mind can make a Will.
For a Will to be valid it must be:
- In writing (video and e-wills are not allowed in South Africa).
- Signed on each page and at the end by the person making the Will (known as the testator/testatrix.
- Importantly, the signature must be done in front of two witnesses (who are older than 14 and who do not benefit from the Will).
3. Signing a Will?
Point number three is vitally important. It must be noted that you cannot sign your Will and then mail it to the witnesses to countersign. All three parties must be present at the same time. It is also important to note that the witnesses cannot benefit from the Will, which means that witnesses cannot consist of your beneficiaries, Executor or Guardian. Even though the lockdown restrictions have eased, current social distancing requirements may still pose a problem for someone making a Will. With offices becoming more open, it is advisable to maybe ask two colleagues to meet in the office and sign as witnesses (they do not need to read the Will, only witness you making yoursignature).
4. Drafting a Will
You can get assistance in drafting a Will from attorneys, banks, chartered accountants, a board of executors, trust companies and other individuals who have the necessary qualifications to draft a Will. Each year, the Law Society of South Africa runs National Will Week, where attorneys assist the public with drafting a basic Will at no cost. This year, the event will take place from 26 to 30 October.
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