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REQUIREMENTS OF A WILL

Article by listed attorneyNANIKA PRINSLOO

A will is the last legal document that you can leave in which you can dictate to the world what you would like to happen to your assets after your death.  It is extremely important to have your will drafted by a professional person with the necessary knowledge.  An invalid will or dying without a will can have disastrous consequences:  not only financially, but  people that you may not to leave anything to, may inherit from you.  See our article on dying without a will .

There is never a better time to make your will than now, because anything can happen to any of us at any time.

MAKE SURE YOUR WILL IS VALID

We often come across persons who want to save the cost of drafting a will and then “cut and paste” from the internet. This is disastrous as each sentence in a will has legal implications that a lay person will not be aware of.  There are also tax implications to consider when drafting a will so it is better to pay a little bit more so that you can know your loved ones will be looked after in the manner you intended.

REQUIREMENTS OF A LEGAL WILL

There are several requirements for a will to be valid and some of them are broadly listed here: 

First of all a will is only valid if it is in writing.

The document must be signed by the Testator or Testatrix (the person who makes the will) as well as two witnesses at the end of each and every page. 

The will must be signed by the person who makes the will. This means that you cannot authorize somebody else to sign your will on your behalf.  Also, there are cases where the will is drafted, but the person died before he/she could sign the will.  In these instances the will was not valid and the person’s assets were dealt with in terms of intestate succession.

The person who makes the will, as well as the witnesses must be in the presence of each other when the will is signed.

The witnesses are not allowed to inherit from your will, so do not let any person who stands to inherit from you sign as a witness.  The Executor can also not inherit from the person who makes the will.

EXECUTOR

An Executor must be appointed in your will. The Executor is the person who will finalise the estate.  (“Estate” refers to everything that you owned, as well as all your debt.)  Finalising the estate means that there are certain steps that the executor must take. See our article on Deceased Estates . The Executor should rather be a professional person who knows his/her subject, because if you appoint a family member who is a lay person, the family member will in any case have to appoint a professional as they won’t know what to do.

A TRUST AND YOUR MINOR CHILDREN

Should you have minor children, it is important that your will contains a clause that makes provision for the registration of a testamentary Trust.  This means that a Trust will be registered after your death and the share that your children that are minors inherit, will be placed in Trust for them and be managed by Trustees.

If you do not create a Trust for your minor children in your will, or if you do not have a Trust that you registered during your lifetime and leave your assets to that Trust, the monies that they inherit will have to be transferred to the Guardian Fund. 

The latter is a government Fund which holds all monies from estates where there were no wills for minors or where beneficiaries of wills cannot be traced.  The problem with the Guardian Fund is that the monies are collectively invested and the interest earned is not very high.  Once the child reaches the age of eighteen they can obtain the monies from the Fund.

If you create a Trust in your will, the Trustees that you appoint will invest the monies at better rates and will be able to better financially maintain the children than the Guardian Fund would be able to.  Also, if you prefer that the children receive the monies at a higher age than 18, you can determine so in your will.

You do not necessarily have to create a testamentary Trust for your children.  You can create a Trust in your will for any other purpose or person.

It is also important to know that you can also register a Trust during your lifetime.  We refer you to our article on trusts in this regard . 

CONSULT A PROFESSIONAL

Consult with us or a professional in your area as soon as possible to make sure that you leave a valid will.

 

This article written by Nanika Prinsloo of Prinsloo and Associates.

www.empowerlaw.co.za

email:  nanika@vodamail.co.za

Tel:  072 8558 106