Why do I need a will? A will is a written document, either written by hand or typed, which enables you to decide who your beneficiaries should be and how your deceased estate should be distributed. Your will portrays your last wishes, and appoints an individual or a firm to attend to the administration of your estate. A will can also make provision for your minor or disabled children after your passing.
Who is competent to make a will? The person(s) who draws up a will is called a testator (male) and a testatrix (female). A testator or testatrix should be a person(s) aged 16 years and older. This person should also have the mental capacity to understand and appreciate the consequence of their actions at the time of making the will.
Who can draft my will? Attorneys’ firms or fiduciary companies are two of the institutions you can contact to help you draft a will. You can, however, draft your own will as well, taking into account that it has to comply with the relevant formalities for a valid will, as set out in the Wills Act, 7 of 1953 (“Wills Act”).
Who can I ask to be a witness to the signature of my will? Any person over the age of 14 years can be a competent witness to your will, provided that such person, at the time of their signature to the will, is competent to give evidence in a court of law. The following persons should be excluded from signing as a witness to your will as this renders them disqualified from receiving any benefit from your will (subject to exceptions): a) Beneficiaries/heirs; b) Executors; c) A person or his/her spouse who writes a will or any part thereof on behalf of the testator; d) A person or his/her spouse who signs the will on instruction of the testator or as a witness.
What are the requirements of a valid will? a) The will must be signed at the end thereof by the testator/testatrix, or by another person in his or her presence, and by his or her direction. b) The signature must be made by the testator/testatrix, or by the other person who signs in his or her presence and by his or her direction, or must be acknowledged by the testator/testatrix and such other person in the presence of two or more competent witnesses present at the same time. c) The witnesses must attest and sign the will in the presence of the testator/testatrix, each other and, when applicable, the person who signed the will in the testator’s/testatrix’s presence and by his or her direction. d) If the will consists of more than one page, each page other than the page on which it ends, must also be signed by the testator/testatrix or by the person who signed on behalf of the testator/testatrix anywhere on the page. e) If a will is signed by the testator/testatrix by the making of a mark, or by some other person in the presence and by the direction of the testator/testatrix, a Commissioner of Oaths has to certify that he or she has satisfied him- or herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix. Each page of the will, excluding the page on which his or her certificate appears, has to be signed anywhere on the page by the Commissioner. For a more detailed explanation, consult the Wills Act. There are further requirements to be met for the valid amendment of a will, which are also fully set out in the Wills Act.
Where do I keep my will? Your original signed and dated will should be kept in a safekeeping facility either by yourself or by a trustworthy person or institution. It is advisable to have more than one original signed will, stored in different locations in case one becomes lost or destroyed. A copy of your will is not deemed a valid will and your deceased estate will have to be reported as intestate. It is advisable that your family and/or close friends are made aware of the location(s) of your will(s).
What will happen if I pass away without leaving a will? If you die without leaving a will or a valid will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987).
Should my will be amended after divorce? Your divorced spouse might still be an heir to your will. Every divorced person is awarded with a period of three months to amend their wills to exclude their divorced spouse. The Wills Act specifies that, except where it is expressly provided for otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.
How do I appoint an Executor to my estate? Nominating your own executor allows you to choose someone you trust to handle the administration of your estate and ensure that your wishes are carried out after your passing. The executor is responsible for managing your assets, paying off any debts or taxes, and distributing your property to your heirs according to your will or the laws of intestacy. Choosing a capable and trustworthy executor can help simplify the complex legal requirements and ensure that your estate is handled efficiently and in accordance with your wishes. This person does not have to be the same person or institution who drafted your will. You can appoint more than one person and it does not necessarily have to be a professional person or institution. Your executor can appoint an agent to deal with the administration according to his/her instructions as the executor. The normal prescribed executor’s fee is 3,5% of the value of the assets, you are however, entitled to indicate a different fee in your will, but it is advised to ensure that your nominated executor is in agreement with this, if the fee is lower than the prescribed fee.
