The importance of a valid will which is drafted correctly
There are some documents and contracts in your life that will simply be much more important than others. Your will is such a document. It is a document that becomes very important once you’ve passed away and also gives you the best chance to ensure your wishes regarding your estate are respected once you are no longer here. The importance of a will should never be underestimated, nor the requirements that need to be met to ensure that the will is valid and drafted correctly.
What a valid will can and can’t do once you have passed away
In its most basic form, a will indicates how you wish your estate to be administered once you have passed away – who inherits what. If you have a valid will, it cannot be ignored. However, there are laws in South Africa that also have to be followed and a will can only be administered in conjunction with these laws. These are The Administration of Estates Act 1965, The Wills Act South Africa 1953, and The Intestate Succession Act 1987 (only applicable if you do not leave a will behind or your will is invalid).
What it can do:
In your will, you can nominate the individual that you wish to administer your estate. This individual, the executor, will be responsible for ensuring that the will is honoured, and the estate distributed legally and according to the will to the extent that it is legal and possible. If you nominate an individual in your will, it is best to also discuss this with them as they have the right to not accept executorship.
Your will can further clear up any doubts about who is to inherit which assets and/or monies. The flip side of this is that you can, of course, do your best to ensure that your assets do not end up with people you don’t want to have them. If you have a prized collection of rare books, for example, you can stipulate that these should be inherited by your bibliophile grandchild and not another relative that you fear will only sell them. In South Africa, no individual has the right to inherit from a deceased estate and if, for example, you name one family member as a beneficiary and not another, there is very little they can do about it. There are exceptions to this, however, that we will get to when we discuss what your will cannot do.
If you still have minor children, your will can also serve as the final indication of who you name as their guardian. If this is not stipulated, the court will decide. When a valid will is in place, it will be easier and faster for your heirs to access their inheritance. In your will, you can also give gifts and charitable donations that will help to offset the estate tax that will have to be paid.
What your will cannot do
Your will cannot enforce conditional gifts that are illegal, immoral or against public policy or unreasonable to enforce, solve your estate’s insolvency, or exempt you from certain financial responsibilities.
If you name a beneficiary and you want a condition to be placed on that inheritance, it has to be reasonable. Let’s say you sponsor your grandchild’s tertiary education but only if they leave their current partner whom you disapprove of – this is not an enforceable condition. An enforceable condition could be that he/she maintains a certain average throughout their studies.
If your estate is insolvent, your death will not change this situation. Your will might be written without considering the estate’s insolvency, but the insolvent estate’s debts with its creditors have to be settled first. Only once this is done can whatever is left of the estate be distributed among the beneficiaries.
In addition to debt responsibilities that need to be seen to, other financial responsibilities also take precedence. A minor child, for example, can claim maintenance from a deceased estate as a parent’s support of their children is only terminated by the child’s death, not the parents’. If an individual did not make provision for their child’s maintenance in their will, the child’s claim against the estate will legally rank higher than any named beneficiary. Similarly, a spouse can also claim maintenance if he/she is unable to meet their maintenance needs by themselves, but only if the marriage was dissolved by the death of the spouse.
What makes a will valid?
The contents of a will mean next to nothing if the will itself is not valid and a will is only valid if:
- The testator is 16 or older and mentally capable of appreciating the nature and effect of his/her act.
- The will must be in writing – typed or handwritten. The person that wrote the will cannot be a named beneficiary.
- Every page of the will is signed by the testator and competent witnesses.
- The testator and witnesses must sign in each other’s presence.
- A witness cannot be a named beneficiary or nominated executor
- If the testator cannot sign due to a disability, they can nominate someone to sign on his/her behalf or make a mark (a cross or thumbprint). This manner of signing needs to be certified by a magistrate, justice of the peace, commissioner of oaths, or notary public that will also sign each page of the will.
If these requirements are not met, a will can successfully be contested because there was a failure to comply with the formalities or the testator did not have a testamentary (mental) capacity. A will can also be contested on the ground of forgery or undue influence.
When you want to draft a will or review your current will, it is best to have it done by professionals that have extensive knowledge of all the laws and requirements that have been touched on here. At AED Attorneys, we can assist you with drafting a will that will make it as easy as possible for your executor to administer it and your loved ones to inherit.
AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.More About AED Attorneys