Advocate Veerash Srikison stresses the importance of understanding how you can protect those who are in need of your assets once you have passed away.
The Wills Act 7 of 1953 provides the regulations of “inheritance” and below are some basic guidelines for drawing up a will that will help your family transition through their period of mourning.
WHAT MAKES A WILL VALID?
- You, known as the testator (a person who has the will drawn up for themself) must be 16 years or older and mentally capable of understanding the nature and effect of your actions.
- The will must be in writing. You must initial/sign every page of the will and the end of the will. l Two competent witnesses (older than 14 years of age) must be present when you sign your will and must also sign the will in your presence and each other’s presence.
- If you make changes to your will, then two competent witnesses must be present when you sign the changes and they must sign the changes in your presence and in each other’s presence.
THE PURPOSE OF YOUR WILL
- To divide your property and appoint an executor to make sure that your property is divided according to your wishes set out in your will. Be sure to appoint someone who is trustworthy, as he or she will be in charge of collecting all of your assets and settling your debts, and dividing the balance of your assets amongst your heirs. You can appoint more than one executor. If you have not appointed an executor, the family may agree to nominate an executor. If there is disagreement, the Master of the High Court has the discretion to appoint a person.
- To appoint or nominate people who will act as guardians of your minor child(ren) and create a trust to provide for your child(ren)’s future maintenance and education.
IF YOU DIE WITHOUT A WILL
If you die without a will, your estate will be distributed in terms of the rules of Intestate Succession.
This means that:
- If you were married, your spouse will inherit your entire estate. l If you were married with children, your estate will be shared between your spouse and your children.
- If you have children but no spouse, your children will inherit your entire estate which will be deposited into the Guardian’s Fund until they reach the age of majority and then they will receive equal distribution of your assets, unless you specifically allocate their inheritance.
- If you do not have a spouse or any children, your parents will get everything.
- If you do not have parents, your siblings will inherit and so on.
- If you have divorced your spouse and have not updated your will within three months of the divorce order being granted, your ex-spouse will inherit fully in terms of your will.
REGISTRATION OF THE CUSTOMARY MARRIAGE
Either spouse may request a registration of the marriage and must do so within three months of the marriage. The registration can only take place if the following people, once they have completed the necessary forms and declarations, are present at any office of the Department of Home Affairs, or through a designated traditional leader in areas where there are no Home Affairs offices:
- The two spouses, with copies of their valid identity books and a lobola agreement, if available.
- At least one witness and/or representative each from the groom’s family and the bride’s family.
USEFUL TIPS
- If you choose to create a will on your own using a template will purchased from a stationery store, make sure that you include terms and clauses that are particular to your circumstances which can be enforced.
- If you put conditions of inheritance in your will, be sure to include sanctions should these conditions not be fulfilled.
- When there are significant changes in your life, it is important to review your will for any amendments you would need to make and use the words ‘this is my last will and testament’ once you have updated your will.
- You should also keep in mind the change in laws that will affect your assets, liabilities and cash flow, along with the tax implications that will affect the monetary value of certain assets you bequeath to your heirs.
