WHY YOU NEED TO HAVE A WILL

In South African law a person can die intestate or testate. When a person is deceased without a will, it is regarded in law that he or she has died intestate meaning that their estate will be administered in terms of the Intestate Act 81 of 1987.

When a person dies having a valid Will then that person would have died testate and their estate will be administered in accordance with the terms of their will. 

In this article we will be discussing the definition of a Will, the benefits of having a Will and the requirements prescribed by law for a valid Will.

A Will is described as a written document where a person gives directives on how they want to dispose of the property they lawfully own after their death. The Will must be made voluntarily and freely and with clear intention of making a Will.

 

WHO CAN MAKE A WILL?

Section 4 of the Wills Act 7 of 1993 as amended by the Law of Succession Amendment Act 43 of 1992 provides that every person of the age 16 years and above may make a Will.

At the time of making the Will, that person must be mentally capable of appreciating the nature and effect of their act. And if there is an allegation that the testator was mentally incapable at the time of making that Will the burden of proof will be on the person making the allegations.

A Will which complies with the requirements of the Wills act is prima facie deemed to be valid.

 

FORMALITIES OF A VALID WILL

Section 2 of the Wills Act prescribes the following for a valid Will:

1. It must be in writing.
2. The Will must be signed at the end by the Testator or some other person in his presence and by his direction.
3. The testator must sign the Will in the presence of two or more competent witness at the same time.
4. The witnesses must sign the Will in the presence of the Testator and each other.
5. If the Will has more than one page, each page other than the page where the will ends must be signed by the Testator and the witnesses.
6. If the testator signs the Will by way of making a mark, a Commissioner of Oaths must certify that he has satisfied himself as to the identity of the testator and that the Will is signed is the Will of the testator.
7. The Will must be executed in the presence of a Commissioner of oaths who shall certify the will as soon as possible after being signed.

 

WHO CANNOT INHERIT FROM A WILL?

1. Any person who is guilty of undue influence on the testator in order to benefit from the Will.
2. A person unworthy, e.g. when that person caused the death of testator.
3. A person who concealed the testators Will.
4. A person who forged a Will, thereby defrauding the rightful heirs
5. Persons who sign as witness or their spouse.
6. The writer of the Will unless the testator confirms the Will.

 

BENEFITS OF MAKING A WILL

As provided above a Will allows a testator to give clear instructions on how they want their estate to be administered after their death. In a Will a person is able to select beneficiaries he wants to inherit from his estate and also to the type of benefit he wants to bequeath to each beneficiary. It also assists the surviving relative to dispose of the assets in the manner that the deceased would’ve appreciated. 

For more information regarding the requirements and benefits of having a will contacts our office, we have expert Attorneys available to assist you in drafting a legally valid and recognised Will.

Disclaimer: This article is general information and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.

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