THE IMPLICATIONS OF FAILING TO LEAVE A VALID WILL

Expert Opinion – Adv Sogoni

Leaving a will, also known as a last will and testament, is an important legal document that outlines your wishes regarding the distribution of your assets and the care of your dependants after your death.

Last Wills of testament are governed by the Law of Succession Amendment Act 43 of 1992, the Wills Act of 1953, the Intestate Law of Succession Act 81 of 1987 and the Administration of Estate Act 66 of 1965 specifically section 14 of this Act. It is very important to take into cognisance sections of Act 66 of 1965 under which your letter of executorship is issued. In many cases officials at the master’s office normally and wrongly confuse the issuing of letters of authority or executorship between sections 14 and 16 of Act 66 of 1965. This is a grave mistake that is normally made by the masters of the high court nationally, and this may result in the nullification of the letter of executorship or authority.

Here are some important reasons why leaving a will is important:

Asset Distribution

 A will allows you to specify how you want your assets, such as property, money, investments, and personal belongings, to be distributed among your beneficiaries. Without a will, your assets may be distributed according to state laws (intestacy laws), which might not align with your wishes.

Providing for Dependants

 If you have minor children or dependants with special needs, a Will enables you to appoint guardians who will take care of them in the event of your death. This ensures that your children are raised by someone you trust and in a manner you desire.

Family Disputes Reduction

 A well-drafted Will can help prevent conflicts and disputes among family members over your estate. It provides clear instructions on how your assets should be divided, reducing the likelihood of expensive legal battles which may take years and deplete your late estate.

Choice of Executors and Trustees

 You can nominate an executor in your Will in terms of section 14 of the Administration of Estates Act 66 of 1965, someone you trust to carry out your wishes and handle the administrative tasks of settling your estate. Alternatively, you can establish a trust and appoint trustees to manage and distribute assets held in that trust.

 Problems of Intestacy and taxes

Dying without a Will means dying intestate, which can result in a lengthy and expensive probate process. Your assets may be distributed according to state law of intestate, which may not align with your wishes.A Will can also be used for estate planning purposes to minimize the tax burden on your estate. It allows you to make strategic decisions about how to distribute your assets to minimize potential estate taxes.

Donations to Charity

 If you have specific charitable causes or organizations you wish to support after your death, a Will allows you to include provisions for charitable donations.

Business Succession

If you own a business, a Will can address the future of your business, including naming successors or outlining a plan for its continuation or sale. Leaving a Will provides you with peace of mind, knowing that your wishes will be followed, and your loved ones will be taken care of as you intended.

By creating a Will, you retain control over your estate and can adapt it to changing circumstances, such as the birth of new family members or changes in your financial situation.

It is important to note that the specific requirements for creating a valid Will vary by jurisdiction, therefore it Is advisable to consult with an attorney or legal expert who can help you draft a will that complies with the laws in your area and ensures that your wishes are properly documented and legally binding. Additionally, it is a good practice to periodically review and update your will to reflect any changes in your life or financial situation. While it might not be the most pleasant topic to contemplate, creating a will is crucial for several reasons.

Planning for Minor Children

If you have minor children, a Will enables you to designate a guardian who will be responsible for their care in case both parents pass away. Without a Will, the court may appoint a guardian without your input, potentially not aligning with your wishes.

Leaving a Will is of great importance, regardless of your age or financial situation. People with not so healthy bank balance tend to be reluctant to have a Will in place.

Formalities in a Will

Your last Will of testament invalidates all your previous Wills. It is very crucial to comply with all the formalities required for a valid Will such as signatures.  A Will has to be witnessed or attested by two adults of sane and sober senses. Witnesses are only required to witness the signature of the testator and not the contents of the will. All three signatories to the will have a duty to initial every page. Only the original Will is valid in law. A Will can be handwritten or typed. A Will has to be registered with the Master of the high court for it to be effective.

                                                           Challenging the validity of a Will.

Any legitimate beneficiary to the late estate has a right to approach the Master of the High and register his or her complaint. The courts can also be approached to rule or decide on the validity of Wills.

 Wills by married couples

Couples married in community of property have various ways of leaving a Will. Couples can draft a joint Will or separate individual Wills. It is however imperative to note that couples married in community of property are only allowed to draft a Will in respect of fifty percent of their joint estate.

Married women who are housewives normally, wrongly believe their joint estate is the sole property of husbands therefore husbands can bequeath the entire joint estate as they please to their disadvantage.

Persons married in terms of the polygamous African Customary Law are advised to always have a Will in place to eliminate disputes.

Prepared by:

ADV. B.W SOGONI