Hey.Guys

Requirements of a Valid Will

Case study

Sleeping Beauty heard from her friends that she must make a Will in order to provide for her family after her death. She does not know how to make a Will and what the requirements are for her Will to be valid. Sleeping Beauty approached Little Birdie at LegalWise for some advice. Little Birdie informed Sleeping Beauty of the following:

• There are specific requirements a Will must comply with which are regulated by the Wills Act 7 of 1953.
• The requirements for a valid Will are as follow:
  • A person 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 remembered that the person who writes the Will is not allowed to be mentioned as a beneficiary in that specific Will.
  • 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.

Case study

Sleeping Beauty made her Will while being alone in her castle and signed it that same night. There were no witnesses present at that time. She wants to know if two witnesses can sign the Will at a later stage without her being present. Little Birdie informed her that:

• It is very important that the testator and the witnesses sign the Will in the presence of each other. This means that the Will made by Sleeping Beauty is invalid; she and the witnesses must be together at the same time and place when they sign the Will.

Case study

Sleeping Beauty pricked her index finger and is now unable to sign her Will. She wants to know if there is any other way she can sign her Will. Little Birdie informed her that:

• A person who cannot sign his/her Will, can sign it by making a thumbprint. If a thumbprint is used, the Will must be certified by a Commissioner of Oaths indicating that s/he is satisfied with the identity of the testator and that it is indeed the Will of the testator. Sleeping Beauty must place the thumbprint on her Will in the presence of the Commissioner of Oaths, as well as the witnesses.

The article first appeared on LegalWise

by Hey.Guys

Wills

What is a Will?

A Will is a document in which a person ("testator”) makes sure that his/her belongings are distributed in accordance with his/her wishes after his/her death.

Who can make a Will?

• Any person who is 16 years or older may make a Will, unless s/he is mentally incapable to appreciate the nature of making a Will.
• It is advisable that a person obtain the assistance of a professional to draw up a Will, for example, an attorney.

What are the requirements for a valid Will?

• It must be in writing.
• The Will must be signed at the end of it by the testator and two witnesses.
• The testator and the two witnesses must sign the Will in the presence of each other. It should be noted that a person who signs as a witness is disqualified from receiving any benefit from the Will.
• If the Will consists of more than one page, each page must be signed by the testator and by the witnesses anywhere on the page.
• If the testator is not able to sign the Will (for example, where s/he cannot read or write), someone can sign the Will on his/her behalf or the testator can sign the Will by making a mark (like a thumbprint or a cross). A commissioner of oaths must be present when the testator makes the mark or someone else signs on behalf of the testator.
• Any provision in the Will may not be against the public interest or good morals.

What are the basic elements that must be included in the content of the Will?

• The Will must contain:
  • a distribution of property;
  • the extent of the interest in the property (full or limited ownership); and
  • the identities of the heirs (the persons who must receive the property).
• The Will can also make provision for the nomination of an executor and a legal guardian of the minor children of the testator; a testamentary trust; and a clause stating that all previous Wills are cancelled.

What will happen if a person dies without a Will?

• If a person dies (“deceased”) without a Will, the property will be distributed in terms of the laws of intestate succession.
• According to intestate succession, property will be distributed amongst the deceased’s spouse, children and family (if any) according to certain rules relating the order in which they will be entitled to inherit.
• If the deceased did not have a spouse, children or family, the property will be forfeited to the State.

Will a divorce have any effect on a Will?

• A divorce will not invalidate the Will or the part of a Will where a bequest was made to an ex-spouse.
• The law provides that if the testator dies within three months after the divorce, it will be assumed that his/her ex-spouse died before him/her. This means that if the ex-spouse was an heir in the Will, s/he will not inherit from the estate of the testator.
• If the testator dies three months after the divorce without changing his/her Will, it will be assumed that the testator wanted to include his/her ex-spouse in the Will. This means that s/he will still inherit as per the testator’s Will.
• A person’s personal circumstances may change during his/her lifetime and it is important to revise a Will to accommodate these changes.

Where must a Will be kept?

• Wills should be kept in a place that is safe and where it can be easily found after the death of a testator.
• The testator must inform a reliable person of the whereabouts of his/her Will.

The article first appeared on LegalWise

by Hey.Guys

Dangers of Not Having a Will

What happens if a person dies without a Will?

• If a person (“deceased”) dies without a Will, his/her deceased estate (the assets s/he owned at time of death) will be distributed in terms of the Intestate Succession Act (“Act”). This is also known as the rules of intestate succession.
• Due to there being no Will setting out the deceased’s wishes, the Act sets out certain rules in respect of how the deceased estate must be distributed to his/her heirs (persons who will receive the deceased’s assets).
• The Act aims to distribute the deceased estate to close relatives first (in a specific order), for example:
  • If the deceased is survived by only a spouse, the spouse will inherit his/her entire deceased estate. The term “spouse” also includes a same-sex civil union in terms of the Civil Union Act, a spouse in a religious marriage and polygamous spouses in terms of customary marriages. A spouse does not include a partner in a cohabitation relationship.
  • If the deceased did not have a spouse and is only survived by his/her children, then his/her children will inherit the deceased estate in equal shares.
  • If the deceased is survived by a spouse and children, then the spouse will receive a child’s share or R 250 000, whichever is the greater amount, and the children will receive equal shares of the balance of the deceased estate.
  • If the deceased did not have a spouse or children, his/her parents, aunts/uncles and/or siblings will inherit from his/her deceased estate.
  • If the deceased did not have a spouse, children, parents, aunts/uncles and siblings, his/her relatives most closely related to him/her will inherit in equal shares.
• In light of the above, the deceased does not have any control of who will inherit from his/her deceased estate if s/he dies without a Will. This might lead to instances where someone may inherit even if the deceased may have never wanted that persons to benefit from his/her deceased estate.

What if the deceased had no relatives?

• If the deceased died without a Will and had no-one who could inherit from his/her deceased estate in terms of the Act, the deceased estate will be forfeited to the State.
• This means that the money in the deceased estate will be placed in the Guardians’ Fund. If no heirs come forward to claim the money within 30 years, the money is forfeited to the State.

Who will be the executor if the deceased did not leave a Will?

• An executor is the person responsible for carrying out all the duties involved with the administration the deceased estate.
• The appointment of the executor is usually made in the deceased’s Will and is generally someone the deceased trusted to attend to the administration of his/her deceased estate.
• If the deceased did not leave a Will, s/he would have not had the opportunity to appoint an executor. The intestate heirs of the deceased’s estate may nominate a person to be appointed as the executor, however, the final decision of who should be the executor still lies with the Master of the High Court.
• This means that although the deceased may have had someone in mind who s/he would have preferred to be his/her executor, it would not always be that person.
• This may lead to a delay in the procedure, additional costs and frustration for the deceased’s family.

What happens to the children of the deceased?

• If a parent dies, the other parent will be the legal guardian of the children. However, it might happen that both parents of the child is deceased.
• A Will may nominate someone as the legal guardian of the deceased’s minor children if there is no other legal guardian left. However, it does not always mean that the nominated person will be appointed as the legal guardian, but such person will be taken into account when the final decision is made as to who should be appointed as the legal guardian.
• If a deceased did not have a Will, his/her wishes would not be taken into account and the children might be placed in the care of someone they are not familiar with or someone who the deceased did not trust. It should be noted that the best interests of the children will always be of utmost importance when a decision regarding guardianship must be made.
• A deceased might have wanted to place his/her children’s inheritances in a trust to be dealt with in a specific matter, for example, to only be paid out when a child reaches the age of 25 years (this can be provided for in a Will). However, without a Will the inheritance will be paid out in terms of the Act if the child is 18 years or older.
• If the child is still a minor, the inheritance will be kept by the Guardian’s Fund. The Guardian’s Fund is established to protect and manage money on behalf of certain persons, such as minor children.

by Hey.Guys

Duties of an Executor of a Deceased Estate

During a person’s lifetime s/he will gather assets, in other words, belongings such as a house or a motor vehicle. A person will also gather liabilities, in other words, credit such as a home or motor vehicle loan. These assets and liabilities will form part of a person’s estate. At the death of that person, his/her deceased estate must be administered, in other words, divided, distributed and controlled by someone. This person is called an executor.

Case study

Charlie passed away and Fiona was appointed in Charlie’s Will to be the executor of his deceased estate. She is not familiar with what this entails and wants to know what her duties will be as an executor. Fiona contacts a LegalWise Legal Counsellor for some advice.

The LegalWise Legal Counsellor advises Fiona that the executor will be responsible for the administering of the deceased estate in terms of the Administration of Estates Act 66 of 1965 and the duties are set out as follow:

• The executor must meet with the family of the deceased in order to obtain all the relevant information and documentation needed, such as the death certificate and a list of the deceased’s assets and liabilities.
• The deceased estate must be reported to the Master of the High Court in the area where the deceased lived.
• The executor must provide notice to the creditors (persons or entities the deceased owed money to) in order to inform them of the death of the deceased. The notice will also request the creditors to institute their claims against the deceased estate within a period of not less than 30 days or more than 3 months after publication of the notice. The notice must be published in a local newspaper and the Government Gazette.
• All existing bank accounts of the deceased must be closed and a separate bank account must be opened where all money that forms part of the deceased estate must be kept.
• The executor must determine if the deceased estate has enough assets to pay for the liabilities that forms part of the deceased estate. If there is not enough money to pay some or all of the liabilities, the executor must consider selling some of the assets that form part of the deceased estate.
• The executor will be responsible for drafting accounts that must be advertised for the public to inspect. These accounts must then be lodged at the offices of the Master of the High Court. These accounts will set out the assets and liabilities, as well as how the deceased estate will be divided and distributed between the heirs of the estate.
• After the accounts have been approved by the Master of the High Court, the executor must pay the creditors and distribute the deceased estate accordingly.

Case study

Fiona informed the LegalWise Legal Counsellor that she is scared that she will not administer the deceased estate properly and wants to know if she can appoint someone to assist her.

• The LegalWise Legal Counsellor advised Fiona that an executor can appoint a professional, such as an attorney, to be the administrator of the deceased estate.
• The offices of the Master of the High Court can also be approached for assistance with the administration of the deceased estate.

The article first appeared on LegalWise

by Hey.Guys