There are still many South African citizens who have not planned for the devolving of their estate, or the future interests of their remaining loved ones once they are deceased. This issue has been highlighted now that National Wills Week 2013 has been concluded.
The importance of drafting a will and estate planning cannot be stressed more in modern society where the number of estate litigation matters are high and on the rise. There are certain scenarios that we need to avoid to prevent complications when an estate is being devolved
The following article provides tips and insights that apply to all persons in order to avoid future disputes be in the courtroom or behind closed doors.
- If a person dies without leaving a will or a document intended to be a will, he or is said to have died intestate. The way their estate is will devolve would be in terms of the Intestate Succession Act 81 of 1987.
- A person's marital status and matrimonial property system will affect how the property will devolve. However one must note that if one is married in community of property, their estate would be jointly shared by the surviving spouse. In this circumstance, the surviving spouse automatically inherits half and the other dependants' share will be calculated accordingly as per the Act. There have been many circumstances where persons have died intestate and family members could not be traced. In these instances, the estate falls to the State.
- Any person aged 16 and over is competent to make a will. A person who is mentally challenged or who cannot appreciate the consequences of their action are disqualified to make a will by the Act. Any person ages 14 and over may sign as witness to the will but no witness may be a beneficiary so as to eliminate fraud or any duress.
- It is required by both case law and legislation that all testamentary documents must be in writing. This may include them being typed, printed or handwritten.
- The signature of the testator/testatrix (the person who makes the will) is at the end of the will. The signature must be witnessed by two or more witnesses who are sound in mind and they too must sign the will in the presence of the testator/testatrix. According to the Act, only the last page need be signed by the witnesses but if there is more than one page, each page must be signed by testator/testatrix and this can be anywhere on the page. Any mark will including a cross or a thumbprint will be considered a will if the testator/testatrix cannot sign the will by signature.
- If a person cannot physically sign the will by themselves, he/she may be assisted by a commissioner of oaths who has fulfilled his requirements in satisfying the authenticity and binding authority on the testator/testatrix.
- There are, of course, persons who are automatically disqualified from making a will or benefiting from one. These include: persons who sign witness to the will; persons who draft on behalf of another; a person proven to have unduly influenced a testator and a person who intentionally contributed towards the unlawful death of a testator/testatrix.
First and foremost, it is advisable to contact your attorney to draft your will as in many cases purchasing and submitting proforma testamentary documents are rejected by the Master of the High court. Numerous proforma wills are not detailed or accurate enough.
One has to appoint an executor of his/her estate. This person will be responsible for the winding up of your estate and executing your wishes in the best possible way. For this reason it is important to nominate a person that is trustworthy and reliable enough to distribute your assets. In most circumstances, the contents and distribution thereof have sentiment and personal implications therefore a person well known to the deceased is advisable to act as executor
A fundamental tool in drafting your will is very simply to be organised. Keeping a list in a safe place of your assets, policies and related statements together will not only save you time but will also assist your legal advisor fit the pieces together for you. Have a logical or structured way of maintaining your estate will cut down any unnecessary stress and will help you formulate a plan for going forward and foresee more realistically what your beneficiaries will receive.
It is not uncommon that relatives wish to pass down family heirlooms or items that hold great sentimental value to them. Drafting a will and ensuring effective estate planning has been conducted ensures solvency in the estate and prevents insolvency. Dying without leaving a will rules out the option of passing down gifts or the opportunity to voluntarily deal with different family dynamics such as children that a new partner may have previously had. More detailed instructions will be ruled out such as burial wishes or uncommon religious requests.
Working in the legal profession, one sees the common occurrence of estates being devolved in a manner that the deceased would not have intended. Do not let the uncertainty of life disadvantage them. Draft a will and be prepared.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.