Should I draft a will?… A mother who has always wanted her daughter to inherit her diamond engagement ring may never get her wish granted if she dies without leaving a valid written will. The mother’s estate would then be distributed in terms of the Intestate Succession Act No. 81 of 1987.
Know where you want your possessions to go!
Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible. Your will should reflect exactly how you want your assets to be dealt with after your death and should not be contra bonos mores (against good morals). It should also not amount to “ruling from the grave”.
10 Important THINGS about your will!
There are a number of legal requirements that have to be complied with for a will to be valid. If it does not comply with all of these requirements it could be found to be invalid. Your estate would then also be dealt with in terms of the Intestate Succession Act of 1987. It is therefore very importance that you obtain the assistance of a lawyer to help you raft a will. A will should also regularly be revised and updated to adapt to your changing circumstances, for example after getting married, and when there is a child in the mix. Section 2B of the Wills Act No. 7 of 1953 (as amended by the Law of Succession Act No. 43 of 1992) deals specifically with a change in marital status by way of divorce, and reads as follows:
If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.
- Only an original and signed Will is valid
- Your appointment of a friend/family member as Executor may be declined by the Master, thus the co-appointment of an approved professional is paramount
- Your Will only deals with life cover that pays your estate, thus your Will and life cover beneficiary nominations must complement each other
- If you do not create a Testamentary Trust for minor children’s inheritances, their money will go to the Government Guardian’s fund
- Guardian nominations are only applicable when there is no surviving biological or legally-appointed parent
- Guardian nominations are only a wish, these nominations should be aware of and happy to accept such an appointment
- No one can inherit until all debts, fees, taxes and marital contract claims are settled, regardless of what your Will says or even if you have no Will
- You can use a Will to document your last wishes but these are only wishes and may not be enforceable, albeit they are likely to be honoured
- If you state that you wish to be an organ donor in your Will, you must still register with the organ donor society for this wish to be effective
- You cannot cater for every eventuality, thus it is better to keep it simple and up-to-date as your circumstances change
A and B get divorced and B dies within three months of the date of the divorce. B’s will was executed before they got divorced. Unless B’s will specifically indicated that A must benefit from B’s estate despite the divorce, B’s estate will then be distributed as if A died before they got divorced. A will therefore not inherit from B’s estate in this scenario. However, should B die more than 3 months after the divorce and B’s will, which benefits A, was not changed, then it will be seen as if B intended A to inherit, despite the divorce.
A person who was previously married and who remarries, should ensure that the necessary changes are made to his/her will. If not, this could have profound consequences for the “new” spouse, especially if the will still benefits the spouse from the previous marriage. When there are minor children in the picture, it is advisable to make adequate provision for their living costs and education in your will. This can be done by creating a testamentary trust of which the minor children can be beneficiaries.
Thinking and talking about one’s passing is not a pleasant subject. Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate. It is certainly worth the time and effort to have a valid written will in place.