Why wills are important and other things to know

Why wills are important

What is a will?

Wills are an important legal document containing the final wishes of how assets and other possessions get distributed after someone passes away. 

A person who drafts a will is known as the testator (male) or testatrix (female). 

Wills are important final wishes involving specific instructions on how one wants their estate handled after they have gone.

Why wills are important

A testator can nominate guardians to care for their children.

Wills are important for the following reasons

  1. A will can protect minors and unfit beneficiaries. This protection is known as a testamentary trust.
  2. The testator of a will can nominate beneficiaries and exclude others.
  3. A testator can designate alternative beneficiaries.
  4. Wills can include terms for beneficiaries before receiving an inheritance.
  5. A will can consist of estate duty savings and other protection mechanisms.
  6. The testator can nominate guardians to care for children after one passes away.
  7. Wills are important in avoiding Intestate Succession.
  8. Claims are processed much faster when a will is in place.

Wills must contain important criteria to be valid

According to section 2(1)(a) of the Wills Act 7 of 1953 (the Wills Act), the following are important to make a will valid:

  • The testator must be 16 years or older.
  • Two witnesses and the testator must sign the will. 
  • A beneficiary must not sign as a witness on a will.
  • If the will consists of two or more pages, the testator must sign each page. 
  • The testator must sign the last page at the end of the will. 
  • Another person may sign the will on the testator’s behalf but they must be in the presence of a commissioner of oaths and two witnesses.
  • A will may be handwritten or typed. 

Aodicils allow small changes to wills.

Different types of wills that are important in South Africa

  1. Will: Intentionally executed by a testator for how their estate gets devolved at death. 
  2. Codicil: This is an addendum or annexure to an already existing and valid will. A codicil must comply with the same formalities as the will. Too many codicils may cause confusion and misinterpretation. In this case, it’s important to draft a new will.
  3. Joint will: The joining and execution of multiple wills with unique provisions in the same document. 
  4. A mutual will: Two or more testators bequeath benefits to each other in the same will. 
  5. Trusts: A testamentary trust safeguards benefits conferred upon minors until they can handle their affairs. 

The most important reason to have a will

The biggest reason why wills are important is Intestate Succession. 

Suppose a person passes away without a valid will in place. In this scenario, the estate will transfer according to the rules of Intestate Succession. 

This transfer means assets will be seized by the government and distributed among beneficiaries closest to the deceased as the government sees fit.

Wills are important to be in place for the deceased family. Failure can lead to family disputes, misunderstanding, heartache and lost inheritance. 

People inheriting are called heirs and legatees. Heirs are direct descendants of the deceased. In the case of intestate succession, heirs will most likely inherit even without a valid will. Legatees are only able to inherit if the will makes provision for them. 

Power of attorney transfers authority.

Wills and power of attorney

Power of attorney is a legal document transferring authority from one person to another. For example, suppose a person suffers from a mental illness and can’t make sound decisions. In that case, they can transfer authority to another to make decisions on their behalf.

However, the person with the power of attorney cannot change a will. It is therefore important to update a will regularly.

What is freedom of testation

Freedom of testation is the right of the testator to write their will as they see fit. They have the freedom to make provisions of their choice and confer benefits to whomever they choose, as long as it is lawful. An example of illegal testation would be to donate money to a terrorist organisation.

Having a will revoked or amended

The easiest way to make important changes to a will is through a codicil. A codicil allows an update without having to redo everything. However, a testator must legally do the addendum to be valid, such as being witnessed by two individuals who are not beneficiaries. 

To change a will entirely means revoking the previous document or stating in the new will that the last record is not valid. 

Per stirpes mean the children of a beneficiary will inherit their assets.

Per stirpes

Per stirpes is an important Latin term that is likely to appear in most wills. It is a legal term stipulating that their inherited assets would pass onto their children if a beneficiary were to die.

Choosing an executor

The testator may appoint any person to be the executor of their estate. 

A common misconception is 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 adequately.

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