Be Reasonable and Write a Will Yourself
Life is unpredictable. We never receive a boarding pass in advance showing the date of our arrival at the Airport Earth departure lounge.
Calls for your last flight can be quite sudden, a reality that the global Covid-19 pandemic has certainly underscored lately.
While those responsible wisely prepare for the worst case scenario by taking out insurance policies, such as to provide financial support for their families in the event of sudden death, the number of people who still neglect to write and keep to date a will is surprisingly high.
The consequences are dire if you don’t.
Death is obviously not something we like to think about and prefer to avoid the subject, often delaying getting our affairs in order.
But when the Grim Reaper comes knocking – hopefully much later, but it could be sooner – it will be much more than just insurance policies and cash at stake.
It will also be about the possibility that you will lose control over the distribution of your precious assets if you have not left a proper will (also known as a testament) in which you clearly state your wishes.
This is by far the most important benefit of having a will. Legally, this is called freedom of test, which means that you determine to whom you will bequeath your property.
In the absence of a will, his estate will be distributed under the terms of Intestate Succession Act 81 of 1987, which essentially means that your next of kin will receive your shared estate.
This may not match your intentions, as you may want to bequeath certain items to certain people who are not related by blood, such as a childhood friend or business partner.
Therefore, if you want to be responsible for distributing your assets when you are no longer alive, write a will – the sooner the better.
It also allows you, as a parent, to elect an appropriate guardian if you and your spouse die simultaneously.
How your property will be used by the guardian for the benefit of your child will be determined by you in the will.
The importance of this cannot be stressed enough.
As parents, you ideally want to appoint a person of integrity who will care for your children, guiding them through life while properly administering your property until your children come of age.
If you fail to do so, the High Court of South Africa will elect a guardian for your children.
Conflict avoidance is another crucial benefit of a will. Each family member is likely to have different opinions about who deserves what.
A good example would be a house administered under the law of intestate successions and not a will.
Some recipients may want to sell the home to get cash, while others may want to keep it as a long-term investment.
Thus, by clearly expressing your wishes, you will eliminate unnecessary quarrels and give yourself and your loved ones peace of mind.
Requirements of a valid will
This is found in Wills Act 7 of 1953, Section 2(1), but in simple terms the formalities required to make a valid Will are:
- It is written and signed by the testator (16 years or older) or by a person authorized by the testator and signed in his presence.
- It is signed by two or more competent witnesses who are at least 14 years of age or older who will be able to testify in court.
- Each page must be signed by the testator. A commissioner of oaths must verify the legality of the document if the testator is signing by means of a mark and not a signature, or if someone else is signing on behalf of the testator.
Where a will does not fully satisfy all of these requirements, a court satisfied that a document was intended to be a will may order the master of the court to accept it.
Writing a will
Hiring a lawyer to help you write a will is the best option.
Lawyers understand the cogs and bolts and can bring possible problematic issues to your attention that they can foresee and help prevent.
Law firms, regardless of their specialty, will write wills for free in many cases (especially if you are a retiree), or at very affordable rates depending on the complexity of your estate.
During National Wills Week in September, the drafting of wills is also free.
Given the information above, the only sensible thing to do is to write a will right away – and review it regularly as your circumstances or assets change.
About the Author: Kivendhren Moodley has earned a Bachelor of Laws with Unisa and has 3 law certificates. He resides in Verulam and is preparing for his board exams in contract law at Harvard University.
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