What is a will?

 

A will is a written document which declares what must happen to the property of someone after his or her death. To be valid, this document must comply with requirements prescribed by law.

 

 

Why have a will?

 

1.    Choice of heirs

It enables the testator (the person whose will it is) to choose his heirs and beneficiaries. It also enables the testator to prescribe the

*size of the benefit,

*and upon what conditions persons may benefit.

A person who dies without a valid will, dies intestate and the assets of such a person will be at the mercy of the applicable statutes and common law.

The effect of dying intestate is a delay in administration, a probable increase in costs and a distribution of assets which may diverge significantly from that which the deceased would have wished.

 

2.    Choice of executor

In a will the testator can appoint an executor of choice rather than leaving this difficult and time-consuming task to be done by someone the testator does not have confidence in. This also prevents unnecessary delays in the administrative process and frustration for one’s family. To preserve the harmony of the family after the death of the testator, a neutral executor such as an attorney can be a useful choice.

 

3.    Choice of a guardian

The will allows one to nominate guardians for minor children and give specific directions as to the benefits, raising and education of the children.

 

4.     Choice of administrator, trustee or investment manager over the benefits of the minor

In a will, financial provisions can be put in place for the benefit of the testators children or other heirs. In the absence of such provisions, the funds available for the minor children will be held by the Guardian’s Fund at the office of the Master. Funds held in the Guardian’s fund are not freely accessible and attract interest at an extremely low interest rate.

 

5.    Estate planning vehicle

Irrespective of the estate size and whether use has already been made of estate planning, the will on its own constitutes an effective and important instrument for sound estate planning. It enables the testator to make use of the various estate duty concessions (eg. the spouse deduction.)

 

6.    Medium for co-ordination of distribution on death

The will is an important medium for the testator to communicate last instructions to other trustees or third parties in respect of property falling outside the estate of the testator (eg. assets or money held in trust, under policy nominations or in retirement funds). It may also effectively be used to confirm desired beneficiary nominations made under such outside instruments.

 

7.    Ability to exclude property from spouse or creditors of a beneficiary

Safeguards can be built into a will to protect a benefit. Otherwise such a benefit will be exposed to the pickings of creditors of the beneficiary. Without proper safeguards, the benefit could fall into the joint estate of a married beneficiary. It might also be subject to an accrual claim from the spouse of the beneficiary. The will could provide for maintenance of an insolvent beneficiary without falling into the insolvent estate of such a beneficiary.

 

8.    Varying common or statutory law

Certain legal consequences, for instance the rights of illegitimate or adopted children to inherit, may be varied by will.

 

Even if you feel that you have no assets to bequeath it is still important to make a will. You may inherit something just before you die and you may not be in a position to make a will anymore ie because you may be mentally incapable. A will facilitates the administration of your estate for your loved ones.

 

Who may make a will ?

 

A person 16 years or older may make a will unless he is mentally incapable.

 

Formalities of making a valid will

 

A will must be a written document and can not be done orally. The will must be signed at the end by the testator and if it consists of more than one page, every page must be signed. The will must be witnessed by two competent people signing in the presence of the testator on every page the testator has signed. A witness must be aged 14 or over.

 

Certain people involved in the execution of a will including witnesses, persons who sign at the direction of the testator and persons who write the will in their own handwriting or their spouses may not benefit thereunder, with certain exceptions.

 

It is always safer for the testator to consult a professional, rather than run the risk of leaving behind loved ones with an invalid or deficient will.

 

Can a will contain any bequest or direction ?

 

In South Africa we have freedom of testation, but this freedom is not absolute. A testamentary direction which is illegal or against public policy is unenforceable. The duty to support will limit a parent’s freedom of testation and the liability of a parent’s estate for support of a dependant child is established in our law. A person can execute a new will at any time and the new one will normally replace older will. The testator may also not "rule from the grave" by prescribing unlimited directions to generations to follow.

 

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