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Drafting a will: your questions answered

If you die intestate the state appoints a legal guardian for your children.

Who can draft a will?

Anybody who is 16 years or older and of sound mind can draft a will. By drafting a valid will, you can ensure that your personal property and possessions are divided according to your wishes. A male person who drafts a will is known as a testator, while a female person drafting a will is known as a testatrix. Having a will allows you to decide how your property and possessions should be distributed in the event of your death, and this is known as freedom of testation – a fundamental principle of our law.

Note: If you die without a will, it is referred to as dying intestate. This means that your assets will be distributed among your heirs in accordance with the law of intestate succession.

Read: Your will and other estate-planning tools

What are the requirements of a valid will?

In order for a will to be valid, it must meet a number of criteria. Firstly, a will needs to be in writing and must be signed by the testator/testatrix. A will can either be typed or handwritten, although the person hand writing the will cannot benefit from the will. The testator must sign the will on every page, including the last page, and it must be clearly dated and witnessed by two competent witnesses. If a person is unable to sign their will, it is permissible for a thumbprint to be used, although the identity of the testator must then be certified by a Commissioner of Oaths.

Note: It is important not to leave a significant gap between the last line of the will and the testator’s signature, as this could cause the will to be declared invalid.

Can anyone witness a will?

Anyone who is 14 years or older can witness a will, provided that they are of sound mind and capable of understanding the consequences of their actions. The law requires that two people witness the will, and that the testator signs in the presence of those witnesses. Although it is not a legal requirement, it is recommended that each witness signs every page of the will. 

Note: Bear in mind that a person who stands to inherit or who is named as a beneficiary in terms of the will should not be a witness to the will. Appointing someone as the executor of the will is also seen as benefitting from the will. In such circumstances, although the validity of the will may not be affected, the person may be limited or disqualified from inheriting under the will.

Should I appoint a guardian for my minor children?

If you have minor children, it is important to nominate a legal guardian for them in your will. In the event of your death, the appointed guardian would take custody of your children and would be legally entitled to care for them until they reach adulthood, in the event that there is no other living legal guardian. It is always advisable to first discuss the matter with the intended guardian before naming them in your will, to ensure that they are happy with the appointment.

Note: Bear in mind that if you die intestate the state will appoint a legal guardian for your children, and it may not be the person you would have chosen. Nominating a guardian in your will does not necessarily mean that person will be appointed, but your nomination will be taken into account when the final decision is made.

What is a testamentary trust?

A testamentary trust is a trust which is set up in terms of your will, and only comes into fruition upon your death.

A testamentary trust is useful for housing the assets bequeathed to your minor children until they are old enough to manage their own financial affairs.

By making provision for a testamentary trust in your will, the assets bequeathed to your children will be housed by the trust and managed by the appointed trustees on your children’s behalf, thereby protecting minor children’s financial interests.

Note: In the absence of a testamentary trust, any assets bequeathed to your children will be managed by the Guardian’s Fund which is not ideal, as the administrative process can be laborious and somewhat inefficient.

What is the Guardian’s Fund?

The Guardian’s Fund is established to protect and manage money on behalf of children under the age of 18 who are unable to manage their own affairs, generally as a result of inheritance. The Guardian’s Fund is regulated by the Master of the High Court. If the parent of a minor child dies intestate or does not make provision for a testamentary trust in his/her will, any assets due to the minor child will be transferred into an account opened in the name of the beneficiary, and the Guardian’s Fund will administer these assets on behalf of the child until he/she reaches age 18.

Note: When setting up a testamentary trust in your will, be sure to nominate trustees who you believe will act in the best interests of your minor children. It is advisable to appoint an odd number of trustees (for instance, three trustees) in order to break any deadlock, and to ensure that the people nominated are financially astute.

What does the executor do?

The executor is the person appointed in your will to carry out your directives. Although appointed in your will, the appointment needs to be ratified by the Master of the High Court. Once the appointment has been approved, the executor can begin the process of winding up your estate which includes: disbursing your property to your beneficiaries, obtaining information on potential heirs, collecting and arranging payments, and approving or disapproving creditors’ claims. The maximum fee that can be levied by an executor is 3.5% (excluding VAT) of the gross value of the deceased’s estate, although these fees are negotiable. Bear in mind that winding up an estate is administratively intensive and requires specialised knowledge and skill.

Note: If you intend to appoint a family member as the executor to your estate, bear in mind that the person should be financially astute and have a solid understanding of accounting. Winding up an estate can be a drawn-out process to finalise and is very labour intensive, so be sure that the person you nominate is up for the job. 

Read: Useful estate planning tips

What is a codicil?

A codicil is an official alteration to an existing will and allows the testator to amend a portion of the will without drafting an entirely new will. A codicil is a separate document that identifies which section of the will is being amended and sets out the new provisions. There is no limit to the number of codicils a testator can sign, although it is a requirement that each codicil is signed and witnessed in the same way as an original will. A codicil does not need to be witnessed by the same people who witnessed the original will. Once signed, a codicil should be filed together with the original will for ease of reference later on.

Note: Be cautious of adding too many codicils to your will as this may lead to confusion, misunderstanding or misinterpretation by your heirs later on. If you need to make a number of changes to your will, consider redrafting your will to ensure that your wishes are fully expressed.

When should I update my will?

The need to revise one’s will is generally triggered by certain events, such as the birth of a child, marriage, divorce, the death of a beneficiary or executor, or gaining property that is not part of your existing will. Failure to keep your will updated may result in people unintentionally inheriting from your estate, or loved ones not receiving any benefit from your estate. It is advisable to review your will once a year as part of your financial review process.

Note: Divorce should be an automatic trigger to review your will, and our law provides a three-month grace period for divorcees to update their wills. In terms of Section 2B of the Wills Act, if a person dies within three months of his/her divorce, any will that he/she drafted before the divorce will be interpreted as if the former spouse had died before the divorce. Effectively, this means that the former spouse will not inherit in terms of the will. If the testator/testatrix does not amend the will and dies after the three-month grace period, it is assumed that he/she intended for the ex-spouse to inherit in terms of the will.

ADVISOR PROFILE

Eric Jordaan

Crue Invest (Pty) Ltd

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