What is Will?
A Will is a legal document containing the final wishes of how assets and other possessions should be distributed after someone passes away. When a person drafts a Will they are known as the testator (male) or testatrix (female).
These final wishes generally involve specific instructions regarding how one wishes their estate to be handled.
Benefits of having a Will
- A Will can protect minors and unfit beneficiaries. This protection is known as a testamentary trust.
- The testator of a Will can nominate the beneficiaries and exclude others.
- A testator can designate alternative beneficiaries.
- A Will can include terms for beneficiaries before receiving an inheritance.
- A Will can consist of estate duty savings and other protection mechanisms.
- A testator can nominate guardians to care for children after one passes away.
- A Will avoids Intestate Succession and speeds up the process of a claim.
To be valid, a Will must comply with the prescribed formalities found in section 2(1)(a) of the Wills Act 7 of 1953 (the Wills Act).
Required criteria for a Will to be valid
According to section 2(1)(a) of the Wills Act 7 of 1953 (the Wills Act), the following are what make a Will valid:
- The testator is 16 years or older.
- The testator and two witnesses must personally sign at the end of the Will. A beneficiary must not sign as a witness.
- Where the Will consists of two or more pages, the testator must sign each page anywhere. However, the last page is to be signed by the testator at the end of the Will.
- Another person may sign the Will on the testator’s behalf in the presence of a commissioner of oaths and two witnesses.
- A will may be handwritten or typed.
- An oral Will is not acceptable.
Differences between other legal documents similar to Wills
- Will: Intentionally executed by a testator for how their estate should be devolved at the time of death.
- Codicil: This is an addendum or annexure to an already existing, valid Will. A codicil must comply with the same formalities as the Will. If too many codicils, it may cause confusion and misinterpretation. In this case, it would be better to draft a new Will.
- Joint Will: The joining and execution of multiple Wills in the same document. Each respective Will contains unique provisions but is set out in the same document.
- A Mutual Will: Two or more testators bequeath benefits to each other in the same Will.
- Trusts: A testamentary trust safeguards benefits conferred upon minor children until such a time they can handle their affairs.
The most significant disadvantage of not having a Will
Suppose a person is to pass away without a valid Will in place. In that case, the person’s estate will devolve (a fancy word for transfer) according to the rules of Intestate succession.
Essentially, assets will be seized by the government and distributed among beneficiaries closest to them as the government sees fit.
Therefore, it is in the best interest of the deceased’s family for a valid Will to be in place. Failure to leave a Will can lead to family disputes, misunderstanding and heartache.
People who inherit are called heirs and legatees. Heirs are direct descendants of the deceased. In the case of intestate succession, heirs will most likely inherit even with an invalid Will. Legatees are only able to inherit if the Will states as such.
Power of attorney, the meaning and function.
Power of Attorney is a legal document that transfers authority from one person to another. One reason for power of attorney may be that a person has a mental illness. When granting this power to a trustworthy person, they will make decisions on the grantor’s behalf.
In some cases, a power of attorney can be obtained, e.g. by a family member, if one cannot give a power of attorney. A person with power of attorney cannot change a will. Therefore, it is vital to keep a Will updated regularly.
Freedom of testation
Freedom of testation refers to the right of the testator to write their Will as they deem fit. Therefore, they have the freedom to make any provisions of their choice and to confer benefits to whomever they choose, as long as it is lawful. For example, a testator cannot donate money to a terrorist organisation.
Having a Will revoked or amended
The easiest way to make slight changes to a Will is through a codicil. A codicil allows an update without having to redo everything. But it still needs to be done legally to be considered valid, such as being witnessed by two individuals.
To change an entire Will means destroying the previous Will, or stating in the new Will that the last document is not valid.
Per stirpes is a Latin term that is likely to appear in the majority of Wills. It is a legal term stipulating that if a beneficiary were to pass away, their inherited assets would pass onto their children.
Choosing an executor
The testator may appoint any person to be the executor of their estate.
It is a common misconception that an executor cannot be a spouse or family member. The opposite is true. However, the executor should have the requisite financial and legal knowledge to tie up an estate.
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