Wills and the law

Source: HER LAW – Making the law work for you

By: Adv. M. Nagtegaal, J. Nagtegaal, V. Nagtegaal If you die and have made your last wishes known through your will, you are said to die testate. If, however, you skipped your appointment to draw up your will and never got round to it, you die intestate. If you don’t have a valid will, the Law on Intestate Succession determines who gets what. There is also a third option: to die partly intestate and partly testate, for instance if you only specify who gets the Porsche and your iPod, but don’t mention who gets your holiday house and collection of porcelain dolls. The Wills Act of 1953 provides the formalities and rules that a will must comply with in order for it to be valid. The rules and laws referred to are based on this Act.

The definition of a will

A will is a legal document stating how you want your money and other property to be distributed after your death. The testator can decide what provisions the will should contain: these can be anything the testator wishes, provided they aren’t illegal (so don’t include your beloved ‘herb’ garden here), against the good values of society, or too uncertain or impractical to carry out. A court has the power to (and must) enforce a valid will.

What makes a will valid?

For your will to be valid, it must comply with the rulings in the Wills Act. These rulings help to eliminate the chance of a will being forged by someone who wants to get his filthy paws on someone else’s fortune. As the testator (the author) of your will, you must comply with the following for it to be valid: § You must draft the document with the intention of it being a will. § The will must be in writing. No good if you whispered it into your lover’s ear. § It must be signed by you, the testator. If you’ve had a blessed life and your will is more than one page long, you must sign each page. You must also sign the will at the end of the document. (If the testator is illiterate or is physically unable to sign it, another person may sign it on the testator’s behalf and by his or her direction.) If you only sign each page and the last page by using initials and not your full signature, it will still be regarded as being ‘signed’ in terms of the law. A testator (not a witness) can also sign by making a mark (for example an ‘X’) instead of a signature. If you do sign it by way of a mark, a Commissioner of Oaths must satisfy himself as to your identity, and that it is indeed your will. The Commissioner must sign each page of the will except the last page, where he’s required to complete his certificate. (This certificate is stamped on the last page; in it, he must fill in certain information about the person who signed by way of a mark. It’s used to certify that the will is indeed that of the person who marks it.) The certificate needs to be completed as soon as possible after the will has been signed. Two or more witnesses must be present when the testator signs the will. The witness must sign the will in front of the testator and in front of each other, on the last page of the will. The witnesses must be competent, meaning they must be people aged 14 or older who are competent to give evidence in a court at the time of witnessing the will. The Wills Act doesn’t require a will to be dated, but we do recommend it for the sake of completeness. The court usually requires strict compliance with the formalities of the Act. However, if the court is satisfied that a document or an amendment to a document, drafted by a person who has since died, was intended to be that person’s will, it will order the Master of the High Court to accept that document as the will of the testator, even though it may not comply with all the formalities prescribed by the Act. The failure to comply with the formalities should not defeat the genuine intention of the testator. Any amendments made in a will after it has been correctly signed must be identified by the additional signature of the testator (or the person signing on his or her behalf) in the presence of two or more competent witnesses. These two witnesses must also sign the amendment. (In other words, if you change an existing will, you need to sign along-side the changes, and get at least two witnesses to sign there too.) Where someone signs on behalf of the testator, or if the testator signs by way of a mark, a Commissioner’s certificate will once more be needed. All amendments to a will are presumed (unless otherwise proved) to have been made after the will was executed (i.e. after it was originally signed).

Who can make a will?

Every person who’s 16 and over may make a will, unless that person is mentally incapable of appreciating the nature and effect of doing so at the time. For example, you can’t write a will when you’re so drunk that you can’t even remember doing it the next day. A person under the age of 16 cannot execute a valid will, not even with the guidance and support of his or her parents. A person who alleges that a testator’s will is invalid due to the testator’s mental incapacity at the time of signing it will have to prove this on a balance of probabilities. Unless a court declares that a testator was mentally incapable, the presumption is that all people are sound of mind at the time of making their wills and that they understand the consequences. Physical and mental illness and the influence of alcohol or even medical drugs may, however, all result in or contribute to a testator’s incapacity to appreciate the nature and effect of his or her actions. If a testator has already been declared unsound of mind by the court, and a beneficiary of the will wants the will to be valid, the beneficiary will have to prove that the testator did, in fact, have a clear or lucid interval while making the will. This is because the court’s order creates a presumption to the contrary. A will can also be declared invalid if the testator has been subjected to improper influence or pressure, of if someone’s fraudulent behaviour has resulted in the testator’s drafting of the will.

Who can inherit?

A beneficiary of a will can be any natural person (i.e. a human being) or a juristic person (for example, a church or hospital). This includes children in the womb and people not yet conceived at the time the testator executes the will. Whether a person was adopted or born out of wedlock is irrelevant for the purposes of interpreting a will. An adopted child has exactly the same right to inherit as a biological child. Now, however much you love your animals, unfortunately you can’t leave anything to your beloved pooch. This would be declared invalid. You can, however, create a trust through the will to ensure that Bob the Bulldog will be looked after. Another option for animal lovers is to make a bequest, subject to the condition that the beneficiary looks after the animals. What better way to get back at Cousin Betty who always moans about the dog hairs on her clothes when she visits? Leave the house to her on the condition that she looks after the dog, too.

INHERITANCE, DIVORCE, AND THE WILL

Divorce may affect a person’s capacity to inherit from their ex-husband or ex-wife. When a testator dies within three months of a divorce and has not yet changed the will to reflect this, his or her ex-spouse will be regarded as having died before the testator, unless the will indicates something different. Why should your ex benefit from your estate just because you haven’t had time to change your will after the divorce!

‘UNWORTHY ‘ INHERITORS

A person who unjustifiably and intentionally caused the death of the testator, or the death of the testator’s parents, spouse or children, will be legally unworthy of inheriting from the testator. Such a person is not allowed to inherit, as it’s a principle in our law that you can’t enrich yourself by your own wrongful or punishable conduct. A person who is directed to sign the will by the testator, or a person who is witness to the will, can only inherit through the will if the court is satisfied that there was no intention to defraud or unduly influence the testator in the execution of his or her will. It’s best to not allow beneficiaries or their spouses to be witnesses to the signing of your will.

The executor

No, this is not the twin brother of the Terminator. The executor of your estate is the person who sees to it that your estate is liquidated (i.e. made into cash, not put into a giant blender) and distributed according to your wishes, as set out in your will. In your will you may appoint anyone of your choice to be the executor of your estate. As the process is somewhat complicated, it’s best to appoint someone who has knowledge of the law. The best option is to appoint an attorney as the executor of your estate. Your will will be stored in safekeeping at the attorney’s offices, usually cost-free. On the testator’s death, the executor’s duties will begin. By law the executor is entitled to a set percentage of the testator’s estate to cover administration costs and executor’s fees for the work done.

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