Death is an event in life that cannot be predicted, we do not know how and when it would occur, just like other unfortunate event in life. Our law provides regulations and procedures on how your possessions will be dealt with in the event of your death.
South African law provides two mechanism in dealing with a person’s property and the inheritance due to be inherited by their heirs and beneficiaries’. This is referred to as intestate and testate succession law.
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 by way of intestate succession as provided for in terms of the Intestate Act 81 of 1987.
Whereas on the other hand 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 written instructions provided for in their will. The requirements for a valid Will can be found in the Wills Act 7 of 1953.
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.
WHAT IS A WILL?
A Will is a written document where a person leaves written instructions on how they wish their property to be lawfully dealt with post their death. A will must be executed freely and voluntary by the Testator, with clear intention of making a Will. A Testator is a person who has written a Will which is effect at the time of his/her death.
WHO CAN MAKE A WILL?
Section 4 of the Wills Act 7 of 1953 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 such 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:
- It must be in writing.
- The Will must be signed at the end by the Testator or some other person in his presence and by his direction.
- The Testator must sign the Will in the presence of two or more competent witness at the same time.
- The witnesses must sign the Will in the presence of the Testator and each other.
- 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.
- 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 the signed with a mark is the Will of the testator.
- 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.
- It is also recommended that each will be dated accordingly because the latest Will repeals all other existing wills prior to it.
BENEFITS OF HAVING A WILL
Having a Will allows you to give clear instructions on how you want your estate to be administered upon your death. You can choose the beneficiaries that you want to inherit from your estate, and what type of benefit you want to bequeath to each beneficiary. It also assists your surviving relatives to dispose of the assets in the manner that you would have appreciated. It also prevents your other surviving relatives from unlawfully inheriting from your estate.
Life is unpredictable but life after death can be planned for, having a will is one way that you can ensure that your loved ones are cared and provided for when you’re not be present to ensure that yourself, it will further give your family peace of mind in knowing that they have fulfilled your wishes. As the famous quote by Christopher Bullock in 1716 states – “in this world nothing can be said to be certain, except death and taxes”.
- Wills Act, of 1953 (No. 7 of 1953)
- Intestate Act, of 1987 (No. 81 of 1987)
- Law of Succession Amendment Act, of 1992 (No. 43 of 1992)
- Bullock Christopher “The Cobbler of Preston” (1716)