When a person dies, they leave an estate, which compromises of assets, i.e., immovable property, investments and bank accounts, as well as liabilities, i.e., bonds, creditor claims and income tax to date of death, whereby the estate liabilities must be settled and the assets distributed, in order to give dignity to the financial affairs of the deceased and to provide for the orderly administration and distribution of their estate.
During a person’s lifetime, they can execute a Will in order to bequeath their assets to whom they please, as well as to determine how their estate will be distributed, provided that certain legal formalities are met in accordance with the Wills Act, No. 7 of 1953, and provided that a balance is struck between the provisions of their Will and the values enshrined in the Constitution of the Republic of South Africa, Act No. 108 of 1996.
Any person over the age of 16 (sixteen) years is competent to conclude a Will, provided that they are mentally capable of appreciating the consequences of their actions. To this end, in order to properly execute a valid Will, it must be in writing and signed by the testator/testatrix (i.e., the person who’s Will it is) on every page, in the presence of 2 (two) competent witnesses who are above the age of 14 (fourteen) years, which witnesses may not be the heirs and/or Executor in the Will, and must be attested by said witnesses on the last page of the Will, in the presence of the testator/testatrix and of each other. Furthermore, the Will can either be typed out and printed, or written by hand, however, the person who wrote out the Will may not be one of the heirs, the testator/testatrix’s spouse, or the Executor in the Will.
It is important to note that a document which has been created with the intention of drafting a Will, but which does not comply with the aforementioned formalities will not constitute a properly executed Will and the heirs of the estate might, accordingly, be necessitated to approach the Court to have the Will condoned, which would result in unnecessary legal fees and in any event, does not guarantee success.
Furthermore, after the death of the deceased, all Wills, together with any previous Wills that had been revoked (but not destroyed), as well as any documents purporting to be Wills, must be sent to the Master of the High Court in terms of Section 8 (eight) of the Administration of Estates Act in order to be registered, regardless of whether the Wills so received by the Master is invalid. To this end, a distinction must be made between the registration and acceptance of a Will, as the Master will register all Wills received, but will not necessarily accept all such Wills.
As such, should a person pass away without leaving a valid Will, then that person is said to have died intestate, which means that their estate will, accordingly, be distributed to the deceased’s nearest blood relations in terms of the Intestate Succession Act, No. 81 of 1987.
Furthermore, even if the deceased had left a valid Will, they can be said to have died partially testate and partially intestate if their Will, either, does not deal with certain of their assets, or is silent in regards to the residue of their estate, or if the provisions of the Will are unclear and/or impossible to carry out and their estate will, accordingly, devolve wholly or partially intestate in its distribution to the deceased’s nearest blood relations.
To prevent this from happening, it is advisable to either amend your Will and to ensure that any further testamentary writing complies with the requirements of the Wills Act in order to be valid, alternatively, to include a codicil on your existing Will, which would contain further details, amendments, changes and/or conditions to your Will.
In light of the above, it is evident that a Will is a specialized document, which should, preferably, be drawn up by an expert such as a practicing attorney, banking institution, board of Executors, or a chartered accountant, in order to ensure that it complies with all of the relevant formalities to be accepted as a valid Will, and should be kept safe by a trustworthy person or institution.
JW Wessels and Partners Incorporated
Kindly be advised that we assist with the drafting and subsequent safekeeping of Wills, amongst a wide array of other professional legal services, such as the administration and distribution of deceased estates. Should you have any additional questions, please do not hesitate to contact us for more information.
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