DYING WITH A WILL

By Shaun Bergover

WHAT IS A WILL?

A Will is a legal document expressing your wishes as to how you want your property to be distributed following your death. It is an important part of estate planning. The only way in which the law will recognise your intentions of what should happen to your estate, is if your intentions/wishes are documented in writing in the form of a Will. Should you fail to prepare a valid Will prior to your death, you will be said to have died intestate, and the laws of intestate succession will determine how your estate is divided. If, however, you leave behind a valid Will, you are considered to have died testate, and your estate will be distributed according to your wishes.

CAPACITY TO MAKE A WILL

The capacity to make a Will is known as testamentary capacity. The Wills Act 7 of 1953 specifies that the person drawing up the Will must be:

At least 16 years of age; and
Mentally capable of understanding the nature and effect of his act at the time of making the Will.

Wills are mostly disputed on the issue of mental capacity. The person alleging that the testator lacked mental capacity to execute a Will has to prove this. This normally involves evidence from a medical practitioner. The person alleging invalidity has to first approach the Master of the High Court. If the Master accepts the Will as valid, a dissatisfied party will have to approach the High Court.

LEGAL REQUIREMENTS TO MAKE A WILL IN TERMS OF THE WILLS ACT 7 OF 1953

The will must be in writing.
The Testator must sign the will in the presence of two witnesses.
The Will must be signed by the testator at the end and must be signed (or at least initialled) on each page too.
When the testator cannot write or sign for him/herself, the Will can be ‘signed’ before a Commissioner of Oaths using a thumb print.

WHO CAN INHERIT IN TERMS OF A WILL?

Unborn children
Adopted and extra-marital children
A class or group of people

CONTENTS OF A WILL

Personal details of the Testator: The Testator must be clearly identified. A Will must include his/her full names, identify number and address at the time of drafting the Will.
Revocation clause: The Testator must cancel or deem invalid any other Will made previously to the present one.
Appointment of the executor: The executor is the person entrusted to carry out the last wishes of the testator.
Bequest: This is the part of the Will where the Testator leaves his/her property to chosen beneficiaries.
Funeral Instructions: The Testator may wish to specify details pertaining to the funeral.
General Clauses: An example of a general clause is the exclusion of certain marital regimes from a bequest to the Testator’s heirs. This means that any benefit given according to the Will cannot be included as part of the beneficiaries’ joint estate in a marriage in community of property or as part of the accrual in a marriage out of community of property. This is done to protect the benefit should the Testator’s heir go through a divorce.
Signature: It is important that the Testator signs the Will and initials every page alongside two witnesses.
Date: A Will must be dated. This is necessary to distinguish different Wills and to establish which Will was the last one written by the Testator.