Foundation Family Wealth - Make Sure You Have a Valid Will

Last month we started delving into the legal aspects that we need to understand as part of the financial planning process.

We continue our journey this month by taking a high-level look at the Wills Act. Without venturing into the specific wording of bequests or clever structures, let’s start by asking a simple question: Is your will even valid?

The Basics

A will is defined in the Wills Act, 7 of 1953 as a “testamentary writing” and “codicils” – a typed or handwritten document and annexures, which sets out your wishes in the event of your death. How you compile your will is important. There are rules and if you don’t comply, your beneficiaries may end up fighting in court over your intentions, or in the worst case – your will gets declared invalid.

Sticking to the formalities doesn’t automatically mean that your will is valid. In addition, you must also comply with common law and the stipulations of your will must be practically enforceable. But first let’s make a giant stride to understand a few definitions and get the basics right:

Who can have a will?

Anybody older than the age of 16, who is mentally capable to understand his actions, can have a will. This person is called the “testator”.

Who can witness a will?

Anybody older than 14, who will be able to give evidence in court (if necessary) can witness a will. This is not simply about the age, but also about the level of maturity of the person who acts as the witness.

What is the difference between a legatee and an heir?

The word beneficiary is the collective name that refers to both legatees and heirs. A legatee is a beneficiary who inherits a specific asset or a sum of money (this is called a legacy), while an heir is a beneficiary who inherits the whole or part of the residue of the estate (i.e. after all legacies have received their inheritance).

Who can be a beneficiary?

Children and adults have equal rights to inherit, but it’s helpful to understand the position of children as beneficiaries in terms of the interpretation of a will:

Unborn children – The basic principle is that all persons who are alive, or who were conceived and later born alive, are able to inherit. If mom is expecting and dad dies before the baby is born but he named the baby either directly (“my unborn child”) or indirectly (“my children”) in his will, then the baby is a beneficiary if the baby is later born alive.
Children born out of wedlock – The extra-marital status of children born out of wedlock is irrelevant.
Adopted children – An adopted child is seen as if he was born from his adoptive parents and not his biological parents.

Who cannot be a beneficiary?

A person can become “unworthy” to be a beneficiary. This can happen in a number of ways, but here are a few common ones:

Roman-Dutch law gives us the principle of de bloedige hand neemt geen erf. Simply put: a person who murders another may not be his beneficiary (but this does not include acting in self-defense).
It is a criminal offense to steal, deliberately destroy, falsify or damage a will, and anybody guilty of such an act can’t benefit from the will.
A person who influences the testator to name him as a beneficiary will be disqualified.
A person who signed the will on behalf of the testator, and the witnesses of the will (including the spouses of such persons) cannot be beneficiaries in principle. But they may qualify to inherit if there are at least two other independent witnesses who signed the will, and who will not receive any benefits from the estate.

What happens if I am recently divorced, and I die before I made a new will?

Say you passed away within three months after getting divorced, and did not make a new will after the divorce, your ex will be disqualified as a beneficiary. This regulation was put in place because there is the assumption that divorced spouses would not want to benefit each other once they are divorced. After three months this provision falls away, if you died in the fourth month after the divorce, your ex would inherit as per the pre-divorce will.

How should I sign my will?

There are a few formalities in this regard:

You must sign every page of the will and at the end of the document (or if you are physically unable to sign yourself, you are allowed to appoint someone else to sign on your behalf).
You (or an appointed person) must sign in the presence of two or more competent witnesses at the same time.
If you do not sign with a full signature, the “making of a mark” is acceptable, but this then needs to happen in the presence of a Commissioner of Oaths who your identity.

Interestingly, it is not a requirement that a will must be dated. But in practice this is always included, and is typically a sentence that reads somewhere along the lines of “Signed at (place) on this (day and date) in the presence of the undersigned witnesses….”

Who can be the executor of a will?

An executor is the person who has the responsibility to wind up your deceased estate, and to communicate with the Master’s office during that time. You will nominate an executor in your will, but this doesn’t necessarily mean that he/she will be appointed by the Master.

The nominated executor will have to be qualified (in terms of knowledge and experience) to deal with the administration aspects. He can’t be a minor or be mentally unsound. He (or his spouse) can’t have signed the will on the testator’s behalf, or prepared your will in his handwriting.

Persons living outside South Africa and unrehabilitated insolvents (a person who still has limited contractual capacity after having been declared insolvent by a competent court) may be considered as executors but it’s likely that the Master will insist that they provide security (and register a domicilium address in South Africa in the case of a non-resident).

What happens if my will is not signed correctly?

If your will is signed but does not comply with the formalities of the Wills Act, the court can still make it valid if it is satisfied that the document contains your wishes and that the assets are bequeathed according to your intentions.

Interpretation is key here, and debating this may incur considerable legal costs and can become a very drawn out process. Even if the outcome is favourable for the beneficiaries, it’s best to avoid this situation and make sure we cross our “t’s” and dot our “i’s”!

Of course there are also other scenarios where the will is declared invalid, or where you didn’t make a will, or your will can’t be found. Then what? Next month we look at this aspect to see how an estate is divided according to the provisions of the Intestate Succession Act.

5 basic points check on your will today

Do you have your original will?
Is the will signed and witnessed by two people who are not benefitting from the will?
Who is named as Executor, and is he/she capable to handle the administration aspects of winding up an estate?
Have you updated your will according your current circumstances?
Did you take your marital regime into account when bequeathing your assets?

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