Wills

WILLS

WHAT IS A WILL

A Will is a specialised document, which should preferably be drawn up by an expert like an attorney, which contains the Testator’s/Testatrix’s instructions and last wishes as to what must happen to his/her assets when he/she dies.

WHO IS COMPETENT TO MAKE A WILL

The person who signs a Will is called the Testator/Testatrix. Persons 16 years and older are competent to make a Will to determine how their estate should devolve after their death, unless they were mentally incapable of appreciating the consequence of their actions at the time of making the Will

 WHO IS COMPETENT TO ACT AS A WITNESS TO A WILL

Persons 14 years and older are competent to act as a witness to a Will, provided that at the time they witness the Will they were not incompetent to give evidence in a court of law.

WHAT ARE THE REQUIREMENTS FOR A VALID WILL

  • Since 1 January 1954 all Wills must be in writing. They can be written by hand, typed or printed.
  • The signature of the Testator/Testatrix must appear at the end of each and every page of the Will and at the end of the Will.
  • This signature must be made in the presence of two competent witnesses.
  • The witnesses must attest and sign the Will in the presence of the Testator/Testatrix and of each other.
  • Although the Testator/Testatrix must sign all the pages of the Will, only the last page of the Will needs to be signed by the witnesses. In practice the witnesses sign each and every page.

 WHAT ARE THE REQUIREMENTS FOR A VALID WILL IF THE TESTATOR/TESTATRIX CANNOT SIGN HIS/HER NAME

  • If the Testator/Testatrix cannot sign his/her name, he/she may ask someone to sign the Will on his/her behalf or he/she can sign the Will by making a mark (a thumb print or a cross).
  • When the Will is signed by someone on behalf of the Testator/Testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied himself/herself as to the identity of the Testator/Testatrix and that the Will so signed is the Will of the Testator/Testatrix.
  • The Commissioner of Oaths must sign his/her certificate and he/she must also sign every page of the Will, anywhere on the page. The Commissioner of Oaths must be present when the Will is signed and must append his/her certificate as soon as possible after the Will is signed even if the Testator/Testatrix dies soon after signing the Will.

WHAT IS A CODICIL

A codicil is a schedule or annexure to an existing Will, which is made to supplement or amend an existing Will. A codicil must comply with the same requirements for a valid Will. A codicil need not be signed by the same witnesses who signed the original Will. In practice the use of a codicil is not advisable except in “deathbed” situations and is it preferred that a new Will is drawn and signed.

 WHAT IF I WANT TO AMEND MY WILL

Amendments to a Will must comply with the same requirements for a valid Will and, if a Testator/Testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a Will. When amending a Will, the same witnesses who signed the original Will, need not sign it.

 MUST I AMEND MY WILL AFTER A DIVORCE

  • A bequest to your divorced spouse in your Will, which was made prior to your divorce, will not necessarily fall away after divorce.
  • The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within 3 months of the divorce.
  • This provision is to allow a divorced person a period of 3 months to amend his/her Will, after the trauma of a divorce.
  • Should you, however, fail to amend your Will within 3 months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the Will.

 

WHO IS DISQUALIFIED FROM INHERITING UNDER A WILL

The following people and their spouses are disqualified from inheriting under a Will:

  • A person who writes a Will or any part thereof on behalf of the Testator/Testatrix
  • A person who signs the Will on instructions of the Testator/Testatrix
  • A person who signs the Will as a witness

 WHAT WILL HAPPEN IF YOU DO NOT HAVE A WILL

  • If you die without leaving a valid Will, your estate will devolve according to the Intestate Succession Act, which may result therein that the people who inherit and the size of their inheritances may differ from what you would have preferred.
  • The finalisation of the estate may take longer due to unforeseen problems and can also result in extra and unnecessary costs, practical problems with regards to division of the assets or conflict between family members due to a lack of instructions from you on how to distribute your assets.
  • A cash shortfall can cause major problems and delays, especially if a minor’s inheritance must be paid to the Guardians Fund and can cause a family home to be sold.

 COSTS TO DRAW A WILL

Subject to certain conditions, we are often prepared to draft a Will free of charge.