Suffice to say that talking about and planning for death is an unpleasant and unsettling task.
Nevertheless, it is essential to have a Will in place to ensure certainty (especially in the midst of the Covid-19 pandemic), that your estate is bequeathed to your intended beneficiaries, that the people you leave behind are cared for and your minor children are looked after by your appointed guardians and that the administration process is expedited, with limited potential for disputes and conflicts.
Given the significance of a document of this nature, South African Law is stringent in relation to last Wills and Testaments and accordingly, it is imperative to ensure that your Will contains valid clauses and is validly executed.
At SWVG, we offer expert legal advice and assistance in respect of all your testamentary needs but in order to further assist with this onerous task, we summarise below some noteworthy factors to be taken into consideration when preparing for your Will, including inter alia:
- Content: Whilst the overriding principal is ‘freedom of testator’ which entails that testators are free to leave anything to anyone in their Will. However, this remains subject to the fact that one cannot include illegal, immoral, or unconstitutional principles;
- Formalities: There are certain formalities prescribed by the Wills Act, 1953 including the fact that a testator must be over the age of 16 years, the testator must be mentally capable of understanding the nature and consequences of his decisions at the time of preparing the Will, the Will must be in writing (typed or handwritten), and each page of the Will must be signed by the testator and by two competent witnesses who are over the age of 14.
- Beneficiaries: the person who drafts and/or writes the Will is not entitled to be a beneficiary nor is a person who witnesses a Will.
- Minor children: where there are beneficiary minor children, who do not have legal capacity to inherit assets directly, a mechanism known as a testamentary trust should be catered for in the Will. The reason for this is that in South African law, where beneficiaries are minor children, the assets vest with the State (in a fund known as the Guardian’s Fund) until such time as the minor children reach an age of majority, which should be avoided. The trust would come into existence on the death of the signatory to the Will and the appointed trustees will administer the trust until the trust terminates. They will be given the power and discretion to manage the assets of the trust on behalf of the minor children i.e. apply the income to their education, maintenance etc.
- Marital regime: a testator has the choice of concluding a joint Will with his or he spouse however it is advisable for each spouse to sign their own separate and distinct Will. There is no major issue with concluding a joint Will, save for the fact that it becomes difficult to change a joint will after the death of one spouse.
If you are unsure as to how to prepare your Will, SWVG Inc. Attorneys assist you by providing you with advice as to what is required and ensuring your loved ones are protected and cared for.
