By Shaun Bergover and Siseko Benya
Dealing with funerals and deceased estates can be tough during the emotional turbulence of a loved one’s death. However, it is necessary to address these issues, to prevent disputes that may arise after someone has passed away. A Will is thus an important part of estate planning.
What is a Will?
According to the Wills Act 7 of 1953, a Will is a formal written statement of your intentions about the distribution of your assets after death. You are deemed to have died “testate” if you have a Will, and your estate will be divided in accordance with your desires in the Will. If you do not have a Will, you are deemed to have died “intestate” and the laws on intestate succession will determine how your estate is to be divided. Intestate succession will be discussed in the next article in the series.
In terms of the Wills Act, the individual drafting the Will (the “testator”) must be at least 16 years old and have the mental capacity to comprehend the nature and consequences of their actions at the time of drafting the Will. Further requirements are discussed below.
The Wills Act sets out the legal requirements for a valid Will which have to be met for the Will to be legally enforceable:
- The Will must be in writing
The testator must draft and sign the Will, but may designate a different person to draft and sign the Will instead of themselves.
- The Testator must sign the will in the presence of two witnesses
The testator and two witnesses must all be present when they sign the Will. The Will must be signed in full by the testator and the witnesses at the end and on each page too (initials are not sufficient).
- Signing a Will using a thumbprint or cross (“X”) when the testator cannot write or sign for themselves, in front of a Commissioner of Oaths
The testator may sign the Will by placing his thumbprint on it if he cannot sign it himself. In this case, a Commissioner of Oaths must certify the Will.
Who can inherit in terms of a Will?
A person making a Will is free to include anyone they wish to inherit from their estate after they have passed on. In addition to a spouse and biological children, the following persons may also inherit in terms of a valid Will:
- Unborn children: Children who have not yet been born or conceived can inherit in terms of a Will.
- Adopted and extra-marital children: Adopted and extra-marital children are no different from children born of a marriage according to our law. All children have the right to inherit.
- Class Bequests: It is possible to leave a benefit to a class or a group of people in a Will, such as grandchildren, a church or a community organisation.
Persons excluded from inheriting in terms of a Will
A person who intentionally and unlawfully causes the death of the testator is excluded from inheriting in terms of his Will.
Contents of a Will
According to the Wills Act, a Will must have the following:
Personal details of the Testator
A Will must identify the testator. It must include his/her full name, identity number, and address at the time of drafting the Will.
Revocation clause
In this clause the testator revokes (cancels) or deems invalid any other Wills made before the one he/she is making at present.
Appointment of the executor
It is to this person that the testator’s wishes in regard to his/her estate will be entrusted. This person is responsible for ensuring that all assets are distributed according to the Will, and all liabilities (debts). This person needs to be more than 18 years of age.
Bequests
Bequests are specified items of property that are left (bequeathed) to chosen beneficiaries.
Funeral Instructions
The testator may wish to specify details about the funeral. Details about the place of burial and the ceremony may be indicated in the Will. Some of the testator’s wishes may or not be legally enforceable, so it is a good idea to get legal advice when deciding to draft a Will.
General Clauses
This may include any further requests that the testator wishes to make in the Will, such as the exclusion of particular marital regimes from the benefits provided to the testator’s heirs.
Signature
The testator must sign the will and every page alongside two witnesses, all of whom must be physically present throughout this process.
Date
A Will must be dated. This is necessary to distinguish different Wills and to establish which one was the last Will to be written and executed by the testator.
Drafting a Will
Before drafting a Will, the testator must have with them all the documentation concerning his/her possessions, assets, policies, and debts. These can include property ownership, vehicle registration, and policy documents. It is advisable to seek the assistance of a legal practitioner or anyone else who is experienced with the drafting of Wills. In this regard, financial institutions such as banks may also assist.
Shaun Bergover is an attorney at the Rhodes University Law Clinic.
Siseko Benya is a candidate attorney at the Rhodes University Law Clinic.
