Kim Nokwaza on Wills…

WHERE THERE’S A WILL, THERE’S A WAY

By: Kim Nokwaza

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A couple of years ago, my colleagues and I coined the phrase “Where there’s a Will, there’s a way…”, this in an effort to add some fun and enthusiasm to that year’s National Wills Week campaign – not only for the team; but to encourage our clients as well!

Having a Will is arguably one of the most important things you can do for yourself, and your family – here’s why.

WHY MUST YOU HAVE A WILL?

By having a Will in place, you ensure that your assets are disposed of in accordance with your wishes after your death. This privilege is called “freedom of testation”.

WHY SHOULD A PROFESSIONAL DRAFT YOUR WILL?

How a Will is signed or executed plays a crucial role in determining the validity of that Will. I’ve been in the industry long enough and have become aware of several instances where Wills have not been properly signed or executed.

While the law does not prevent an individual from drawing up his own Will, I would not recommend it as there are certain legal formalities which must be complied with for the Will to be valid.

An inexperienced individual may overlook these formalities, which could result in a Will being rendered invalid. Improperly executed Wills often result in disputes (largely amongst family members), around what the testator’s true wishes and intentions were. It can get a tad bit tricky to prove once the person is no longer around to provide the required clarity.

SINGLE OR JOINT WILL?

A single Will is the Will of one person. Anyone can make a single Will, irrespective of their marital status.

A joint Will is a Will of two persons – it could be more but this seldom happens in practice. Most joint Wills are made by married couples or partners in common law relationships – however it is important to note that this is a not a legal requirement. There is almost always a desire by the parties to a joint Will to benefit the survivor of them upon the death of the first dying party. In other words, the parties to a joint Will bequeath their estates to each other; whoever survives the other inherits.

A joint Will must provide for a bequest of the estate of the first dying of the parties, a bequest of the estates of both parties if they die within a short period of one another and a bequest of the survivor’s estate should he or she survive the first dying and thereafter die without making a further Will. Provided these requirements are met, a joint Will is perfectly acceptable.

DYING WITHOUT A WILL?

The best way to ensure that after your death your assets are distributed according to your wishes, is to draw up a Will. If you die without a valid Will, your family might suffer inconvenience and even severe hardship. Where a person dies without leaving a valid Will, the estate will devolve in accordance with the Intestate Succession Act. This means that the estate will, in such circumstances, devolve upon the surviving spouse or the surviving spouse and children of the deceased and grandchildren (where a child has predeceased the deceased leaving children). Where there are no descendants, the parents will inherit, and in their absence the brothers and sisters will inherit.

MARRIAGE IN COMMUNITY OF PROPERTY

A marriage in community of property is undoubtedly the cheapest and popular form of all the marital regimes, although it can in some instances be rather flawed.

In this form of marriage, the spouses’ estates (what they own/assets and any debt) are joined together and each has the right of disposal over the assets; they are equal managers of the joint estate. Each spouse has an undivided half share of the joint estate.
Say spouse A and spouse B are married in community of property. Spouse A draws up a single Will (his own Will), and years later he passes away. In his Will, spouse A has not made any provisions for spouse B (he has left nothing for spouse B in his Will). Spouse B will be entitled to inherit 50% of the estate by virtue of being married in community of property. This, irrespective of the fact that no provision was made in the Will.

FORMALITIES OF A VALID WILL

The requirements of a valid Will are:

• A person making the Will must be over the age of 16 (sixteen) years.
• The Will must be in writing. This means that a Will can by typed or handwritten. If the Will is handwritten, it must be noted that the person who writes the Will is not allowed to be mentioned as a beneficiary in that specific Will. (I would recommend that you approach a qualified individual such as an Attorney or Financial Advisor; or engage the services of a corporate, such as a banking institution or relevant insurance house that offers this service.)
• Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.
• The signature of the testator/testatrix must be made in the presence of two or more competent witnesses.
• The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other. 
• What are the requirements for a valid will if one cannot sign his/her name? If you are unable to sign your Will, you may then ask someone to sign the Will on your behalf or you can sign the Will by the making of a mark (a thumb print or the making of a cross). When the Will is signed by someone on your behalf or by the making of a mark the requirements for a valid Will are as follows: Since 1 January 1954 all Wills must be in writing. It can be written by hand, typed or printed.
  The testator/testatrix must sign the Will at the end thereof by the making of a mark, or the Will must be signed by some other person in the presence and by the direction of the testator/testatrix.

• The mark or the signature of the other person signing on behalf of the testator/testatrix must be made in the presence of two or more competent witnesses and a Commissioner of oaths.
• The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other and if the Will is signed by the other person, also in the presence of such other person and a Commissioner of oaths.

• If the Will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix or by such other person anywhere on the page. (Although the testator / testatrix must sign all the pages of the Will it is only the page on which the Will ends, that needs to be signed at the end of the Will).
• A Commissioner of oaths must certify that he/she has satisfied himself/herself as to the identity of the testator and that the Will so signed is the Will of the testator.
• The Commissioner of oaths must sign his/her certificate and he/she must also sign each other page of the Will, anywhere on the page.
• The Commissioner may not sign as a witness.

WHEN TO REVIEW YOUR WILL: In some instances, an annual review of your Will is sufficient. The following should prompt a review (this list is not exhaustive, please consult your financial advisor for advice and guidance):

1. The birth of a child
2. Marriage
3. Divorce
4. Death of a loved one
5. Change in assets (Acquiring or disposing of assets)From the above, it is clear that the drafting of a Will is a rather technical task. One should engage the services of a qualified professional.Remember, where there’s a Will, there’s a way.

Glossary of terms:
Will: A legal document in which a person makes sure that his/her belongings are distributed in accordance with his/her wishes after his/her death.
Testator/Testatrix: A person who makes a Will.
Bequest: A bequest is property given in a Will. 

DISCLAIMER

(i)  The information contained in this document is not intended to constitute legal advice; but merely for information purposes.

(ii)  The contributor (Kim Nokwaza) shall not be liable for any loss or damages suffered by anyone who relies on or acts upon the information contained in this piece.