Covid-19 is probably the word trending the most throughout the entire globe, for the wrong reasons I might add, and it is certainly serving as a wake-up call to a lot of us to update our personal affairs, of which our last will and testament should be the number one priority.
We all know from statistics this virus takes no prisoners and while it tends to attack the elderly more, it has also shown that it attacks younger people as well. This should encourage us, irrespective of age group or gender, to update our wills, or to have wills drafted NOW!!
The intention of this article is not to school you all into in a long and drawn-out legal explanation of all the legal ins-and-outs of wills but merely to outline the importance of having a valid will and if you do have a valid will to update your will regularly.
The importance of having a valid will
I specifically refer to a valid will, as you may have a document that you drafted yourself that purports to be a valid will. If that will does not comply with specific standards, it will be rejected by the authorities, with catastrophic consequences for your loved ones.
Requirements for a valid will:
- Document drafted by any person 16 years and older.
- Your intentions must be reduced to writing, preferably typed. Not legally necessary to be typed but reduces the risk of contesting the document if typed.
- Must have a nominated executor.
- Must have nominated beneficiaries (persons who will inherit from your estate).
- Beneficiaries must inherit specific assets and then the balance or residue of your estate not specifically bequeathed must also devolve upon specific person(s).
- Must not have stipulations which are contra bonos mores (against the law, or illegal).
- Each page of the will must be signed in full, at the bottom of the page, by both the testator (male) and testatrix (female) and two independent witnesses who will not benefit from your estate, all signing in the presence of one another. It’s important to note that the law states that each page only needs to be initialled and only sign in full on the last page but I believe that this could lead to confusion and cause for contesting the will. I am therefore adamant that all parties must sign in full.
- Witnesses must not benefit from your estate in any way and they must be older the 14 (fourteen) years old.
- The last page must be dated in full and the place inserted where the will was signed, and then, of course, all parties must sign in full. This is the only place where the law calls for full signatures, but I refer to my comments in the previous point.
- Preferably do not use an “off-the-shelf” document as an instant will. Whilst it may pass as a valid will, it may not cover all the necessary legal requirements and could lead to various legal headaches!
There are numerous other legal requirements that a will should contain but that will not necessarily affect the validity of the document intended to be your will.
What I do need to touch on is how the validity of your will affects the distribution of assets to your beneficiaries, as follows:
This simply refers to where you have a valid will in place, and you have stipulated who your beneficiaries are and who inherits what assets. It is of utmost importance that you ensure that you bequeath all your assets in your will otherwise some assets may have to be dealt with under the Intestate Succession Act.
This refers to where you do not have a will or not a valid will in place and you then die. What then happens is that the law of Intestate Succession Act, 81 of 1987 outlines who inherits what and this quite often leads to persons being entitled to inherit who you would not have wanted to inherit!
The importance of updating your will regularly
Some of the factors that should be looked at for updating your will are as follows:
- Changing of marital status. This is enough cause for a discussion on its own but not necessary now for the sake of this article. Safe to say that there is a clear distinction between a marriage that is in- or out of community of property.
- Birth of a child or grandchild.
- Entering into business on your own, or with someone else.
- Any other legal event that materially affects your business or personal status.
- Review your will annually to ensure that it remains valid and deals with all your assets.
Once again, the above article is by no means meant to school you into exactly what a will should contain, or exactly when it should be reviewed, the intention is merely to give you an insight into the importance of having a will, what the basic requirements of a valid will should be and when you should review your will.
We are living in extremely difficult and trying times and I think we all owe it to not necessarily ourselves but to your loved ones to ensure that you have a valid will in place and if you do have one, that you review it as often as possible by a reputable company to ensure that you can have peace of mind, knowing that your loved ones are taken care of.