The importance of leaving a will

Losing a loved one is distressing. Having a valid last will and testament in place which guides your loved ones to know your wishes and intentions, may be a great relief in this time of grief.

A will ensures that your assets are distributed to individuals (or organisations) who you want to benefit. Leaving a will allows you to plan and provide for- and take care of your dependants and those you love. You will be in control of who benefits from your assets and you will be able to prevent unintended consequences. What can be specified in a will and the benefit thereof:

• South African law provides for freedom of testation. This means that, in your will, you may dispose of your assets as you please, as long as any intended disposals are not contra bonos mores (against the good values of society).
• You may clearly state how your assets are to be distributed. This can be done in various ways, for example you can state that a beneficiary is to receive a specific item, or a specified amount, or a certain percentage of your estate, etc.
• You may appoint guardians for minor children – if you do not leave a will, the State will appoint guardians for your children, this may not be someone you would have chosen or preferred to care for your children.
• You may provide for the setting up of a trust to hold assets on behalf of minor beneficiaries. Without a will, the inheritance of minor heirs will be paid into the Guardian Fund, which leaves the assets vulnerable to maladministration.
• A will is a useful estate planning tool that may be used to limit estate tax payable.
• You may appoint an executor and determine the executor’s powers. This ensures that a person who you trust will be appointed to finalise your affairs and distribute your estate among your chosen heirs. The executor may be granted various powers such as selling assets, making investments etc. By not leaving a will, and therefore not appointing an executor, it is up to the Master of the court to appoint an executor which may lead to delays in the winding up of estate, which may in turn lead to financial loss by the estate. This may also leave your beneficiaries vulnerable as there may be a delay in distributing their inheritances to them.

Without a will, your assets may not necessarily be distributed to individuals who you wanted to inherit from your estate. If you should die without leaving a valid will, your estate will be finalised in terms of the Intestate Succession Act. This Act determines a formula which will be used to determine your heirs. This is done by determining firstly whether you have a surviving spouse, thereafter, blood relatives in degrees of relation will be heirs. Should you not have any identifiable blood relatives, your entire estate will be paid into the Guardian Fund and if no amounts are claimed by proven blood relatives after 30 years, your estate will be forfeited to the State. This may lead to individuals benefitting from your estate who you may not have wished to benefit, overlooking non-related individuals such as friends or charities, or having your assets distributed in other percentages as to what you would have liked. Your wishes will not be given effect to and may leave your loved-ones and dependants vulnerable as their needs may not be addressed. Requirements for a valid will:

• Must be in writing, an audio or video will is not valid. A will may be handwritten, but if someone wrote the will on behalf of a testator, that person may not be mentioned as a beneficiary in the will.
• The testator must be older than 16 years and must be of sound mind.
• The will must be signed by the testator in the presence of 2 witnesses who are at least 14 years old or older and who are competent to give evidence in court.
• The will must be signed by the testator and witnesses on every page and at the end of the document.
• If a person is not able to conventionally sign the document, for example in the case where the testator is blind or injured, he may sign by making a mark, such as “x”, or by means of a thumb print. If the will is signed in this way, it must be done in the presence of a commissioner of oaths who must affix a certificate to the effect to the will.
• Persons signing as witnesses may not be mentioned as beneficiaries.
• The will must be dated in order to determine which document is the last will and testament in the case that more than one document is found.

It is possible to draw up your will yourself, but it is advisable to use the services of an attorney in order to ensure that your intentions are worded unambiguously and reflected accurately. With various, technical requirements for validity, the use of an attorney may avoid errors which may render the entire will invalid. It is further important to keep your will updated and to revise it regularly in accordance with changes in your life, such as the birth of a child, death of a nominated beneficiary, marriage, divorce, etc. Having an outdated will may lead to a spouse or a child not benefitting, which may not be what you have intended. Always ensure that a trusted friend or family member knows where to find your original will when the time comes that it is needed. If you have assets that will need to be distributed on your death, it is important to draw up a will, whether you are young or old, married or not, have children or not, in order to ensure that your assets will be distributed in the way that you intend.