Wednesday, 15 September 2021

Leaving a Valid Will

Written by 
Leaving a Valid Will

No one likes to think about or plan for the day they pass away. We plan for our future. We make plans for our family. We plan our finances. We make plans for our big birthdays. But not everyone plans for their last day. Making sure your affairs are in order is a kindness to your loved ones as they are left behind to deal with these matters when you are gone. Having a valid Last Will and Testament is just one of these kindnesses, and Wills Week reminds us of this every year.

A Will is a legal document which sets out one’s wishes on how they would like their assets distributed upon their death. Any person aged sixteen years and older has the capacity to do a Will provided that they are of sound mind at the time of signing and they are not acting under duress. The importance of drafting a valid Will cannot be stressed enough, but this is especially important the more complex your estate or family situation is. Anyone can also draw up a Will, but it is always best to seek professional advice when doing so.

Section 2 of the Wills Act of 1953 lists the requirements of a valid Will: 

  • A Will may be typed or handwritten, but it must be put in writing.
  • Each page of the Will must be signed by the testator. Should the testator instruct and appoint a third party to sign, this must be done in the presence of the testator and witnesses.
  • The Will must be signed in the presences of two independent witnesses, i.e. the witnesses are not mentioned in the Will as either the executor or as a beneficiary.
  • The witnesses must also sign the Will in the presence of the testator.
  • Should the testator be unable to sign their full signature, they may sign using a mark. This will need to be done in the presence of a Commissioner of Oaths who will also sign and certify the Will confirming that they have identified the testator and witnessed the mark being made.
  • Although it is not a legal requirement, it is best to also date your Will when signing to ensure there is no confusion should you amend your wishes.

One can nominate whoever they wish to be the executor of their estate. As the executor will administer the estate and has a duty to look after the best interests of the heirs, this is an important decision. One would normally consider a loved one at first, but your executor will require the necessary knowledge to ensure that your estate administration is carried out properly. It is therefore always recommended to appoint a professional either as the executor or to assist your loved one. A professional may be appointed by your nominated executor after your death, but your family will have enough to deal with at that time so it is best to make sure this has been considered when your Will is drafted.

There are many other factors to consider when drafting your Will. Should you have minor children, make sure that your Will includes the details of your appointed guardians who will take responsibility for your children at your death. It is also important to make sure that the guardians are aware that they have been appointed and the responsibility that goes with it. Another thing to consider in the case of minor children, is to include a clause in your Will for the setup of a Testamentary Trust. At this point you may stipulate the details of the Trust, i.e. when will the Trust terminate and at what age should your children receive their remaining capital, will the Trust cover only living and education expenses or should it also cover travel and their first car, etc.

Lastly, it is important to also consult your financial advisor to assist you with the necessary estate planning. One must consider how much estate duty will be payable and if there is sufficient liquidity in your estate to cover this expense, along with executor’s fees and Capital Gains Tax. If you are married in or out of community of property, this needs to be considered when your assets are bequeathed to someone other than your spouse. If you have a Family Trust, one must consider the aspects of the Trust Deed in comparison to your Will and what your death may mean to the Trust.

As always, it is best to consult the necessary people to assist with proper planning. In the case of your estate, it will help to ensure that all matters have been taken care of so that your family won’t have to make the hard decisions during an emotional time.

For more, contact Lana Visser the author of 'Leaving a Valid Will, and Certified Financial Planner at www.fiscal.co.za