Why you should draft a will

It is often said, the one certainty about life is that it will all end in death, once a person dies, all of his/ her assets, including, although not limited to, houses, cars, shares and money in the bank form part of what is called an estate. When a person dies without leaving a valid will, that person is said to have died intestate. This means that the deceased’s assets and property will be distributed in terms of the Intestate Succession Act 81 of 1987.

One of the vivid disadvantages of intestate succession is that, only a certain category of persons can benefit or inherit from a deceased’s estate. The current position in our law is that, only the following persons can benefit from an intestate estate; the deceased’s legal spouse, children, blood relatives, and adopted children.

The opposite on intestate succession is testate succession, this simply means that the deceased (Testator) has left a valid will. Once there is a valid Will, the administration and distribution of the deceased’s estate will be in accordance with his/her express wishes as captured in the Will.

In our law, the Testator (the drafter of the Will) has what is known as a Freedom of Testation, which is free right to decide on how to allocate one’s assets upon death.

The following are requirements of a valid will:

• It must be in writing, typed or hand written.

• It must be signed by the Testator in the presence of two or more competent witnesses. An heir may not sign as a witness. The Testator may also sign using a mark or direct another person to sign on his/her behalf, but this must

be done in the presence of witnesses and a Commissioner of Oaths who will certify amongst others, the identity of the testator and the delegated signatory.

• The Testator must sign at the end of each and every page if the Will has more than one page. It is thus advisable that witnesses also sign each page as well.

• Witness must sign the Will in the presence of the Testator.

It should be further noted that it is a requirement of the law, that, the person making a will must be over the age of 16 and be a person of sound mind, in other words, must be mentally capable. The testator must draft the will personally. However, there are circumstances whereby a third person can draft a will on behalf of the testator, for example, if it is drafted by a lawyer, or by a third person on behalf of a testator who cannot read or write.

A Will can be amended at any time and the requirements are the same. Important to note for spouses is that, a divorce doesn’t necessarily invalidate a Will executed before the decree of divorce. There is a cooling off period of three months within which the deeming provision may not apply, and thereafter, it shall be deemed that the Testator intended that the ex-spouse should inherit from the Will.

It is highly recommended that any person who has assets, however worthless you may think such assets are, should execute a Will to avoid any possible disputes relating to the distribution of your assets while you no longer have a directing mind. Wills are reasonably affordable and most financial institutions offer free Wills to their customers.