What is a will?
"Where there is a will
there is a way
A will is a written document in which you (the "testator") voluntarily set out your instructions as to what you want to have happen to your property after your death. You choose the way in which your family, friends and other people or institutions will benefit from your assets.
There are various legal formalities that need to be adhered th when your will is drafted, so it is best to get a qualified, experienced attorney on board to draft your will properly for you. You don't want your will to be contested in court and possibly declared invalid due to poor drafting!
Before we discuss this invaluable topic any further, there are some important terms that you need to understand:
Why do I need a will?
- Annuity: this is a type of legacy that differs from a normal legacy in that it is a succession of annual legacies for a
fixed period or on condition that the legatee is alive on the due date - for example, you may wish to give your farm to your child, subject to the condition that he/she pays an annuity to your spouse on a yearly basis.
- Beneficiary: a beneficiary is either an heir or a legatee - for example, your spouse, children, friends, relatives or a charitable, educational or religious institution, etc.
- Collation: this means the duty that is imposed on beneficiaries, if they are your descendants, to account to your deceased estate for any loans, donations or advanced received by them from you during your lifetime. This principle of collation is based on the presumption that a parent intends that his/her estate is to be shared equally among his/her children. You may wish to stipulate that certain beneficiaries need not collate gifts, for example, wedding gifts or money toward a business, etc.
- Deceased estate: this is the total of your assets and liabilities when you die.
- Descendant(s): your children, grandchildren, great-grandchildren.
- Estate: means either your gross estate or nett estate.
- Executor: this is a person(s) who you choose to attend to the winding up (administration and distribution) of your estate - this included interpreting the will; attending to the liquidation of assets where need be; protecting the interests of your beneficiaries; attending to the payment of all bills, debts and liabilities; drawing up the liquidation and distribution account etc. Remember that an executor can also be a beneficiary of your will.
- Joint/Mutual will: Where you and someone else (most likely spouse) make a will together.
- Fidei-commissum: this is where you would give part of your estate, usually being immovable property, to one person (the fiduciary), subject to the condition that on the fulfilment of a specified condition or on the occurrence of a specified event (usually death of fiduciary), that the inheritance or part of it is to pass onto another person or class of persons (the fideicommissary - for example, you may wish to give your farm to your child, subject to the condition that when he/she dies, the farm shall go to his/her eldest child.
- Habitatio: this is where you stipulate that an heir is entitled to live in a house belonging to someone else, but has no further rights regarding the house - for example, you may wish to give your house to your child, subject to the condition that your spouse may live there until he/she dies.
- Massing of estates: this occurs where you elect to have a mutual will with someone else (usually your spouse), which consolidates a portion or the whole of your two estates into a joint single estate and provides for the distribution of your joint estate following the death of the first-dying of you both, provided that the survivor receives a limited beneficial interest in the estate such as a fideicommissum or a usufruct.
- Modus: means a bequest in terms of which you can instruct a
legatee or heir that the legacy be used for a specific purpose, which diminishes the extent of the legacy - for example, if you want to give your child your farm subject to the obligation that part of the farm will be set aside for the establishment of a school for the benefit of the farm workers? families.
- Residue: this is the part of your estate that is left after funeral expenses, debts, other liabilities of yours, as well as administration costs, taxes and legacies have been paid.
- Simultaneous Death: where you and your spouse (and/or
descendants) have died together.
- Substitution: this is when you appoint a second beneficiary to take
the place of an original beneficiary (to cover for uncertainties, such as the death of the original beneficiary, etc).
- Testamentary Condition: means a condition whereby a legacy will be paid only in an uncertain future event occurs - for example, if you want to give your child a sum of money if he/she starts his/her own business.
- Testamentary Trust: this is an arrangement through which the
ownership in your property is by virtue of a trust instrument made over to a trustee who administers the trust assets on behalf of the trust beneficiaries - for example, you may wish to establish a charitable trust or a trust to administer property on behalf of your minor children.
- Trustee: a person who administers the affairs of your trust, if you elect to have a trust.
- Usufruct:this is where you stipulate that an heir (the
usufructuary) is permitted to use certain property (the usufructuary property) belonging to someone else and to enjoy the benefits of the property, subject that the property be maintained - for example, you may wish to give your house to your child, subject to the right of your spouse to live there until he/she dies (your spouse may rent out the property and must maintain the property as the usufructuary).
- Usus: this is where you stipulate that an heir is entitled to use
certain property belonging to someone else, but may only use the benefits of the property as he/she requires on a daily basis for himself/herself and his/her immediate family - for example, you may wish to give your small-hold farm to your spouse, subject to the condition that your sibling may live there, but that your sibling may not rent out any of the property to anyone else and that he/she is not responsible for the property's maintenance.
What would happen to my estate if I don't have a will or if my will is not valid?
- It will enable you to choose your heirs and beneficiaries and the extent and conditions of their entitlements. You can nominate anyone you like to benefit from your assets, whether they be family, friends or institutions.
- You can choose your executor. It is best to choose a legally qualified, competent and experienced administrator to wind up your estate - winding up a deceased estate is highly complicated and, if you appoint a layman, he will probably run into difficulties. If you don't have a will, your estate might be left in the hands of an incompetent executor, which may lead to unnecessary frustration in your family and unnecessarily long delays in the winding up of the estate.
- You can nominate a guardian for your children and can give specific directions as to the upbringing and education of your children.
- You can choose a trustee to properly look after the assets that you choose to give to minors. If you don't nominate a trustee or die without leaving a valid will, the minor's inheritance will be paid to the Guardians Fund (at the Master's Office). These funds have limited returns and are not freely accessible.
- You can make use of various estate duty concessions.
- You can include provisions in your will to protect a beneficiary's inheritance from being squandered or otherwise used by the beneficiary's spouse (if they are married in community of property) or creditors falling into the others spouse's accrual (if they are married out of community of property).
- You may vary some of the rights of the common and statutory law, for example, you may elect not to allow your adopted or illegitimate children to benefit from your assets.
- You can leave special instructions, for example, maybe you wish to be cremated rather than buried etc.
Your estate will be distributed according to the Intestate Succession Act, which is quite complicated, but briefly states as follows:
What are the legislative restrictions regarding the contents of my will?
- If you are survived by a spouse, but have no descendants, your spouse inherits everything.
- If you don't have a spouse, but you have descendants, the descendants inherit everything by representation. This division is effected amongst the closest level of descendants on a per stirpes basis and by representation. This means that if your child has predeceased you or does not want to inherit and your child has a surviving descendant, then that descendant will inherit in the place of your child. (Your closest level of descendants would be your children).
- If you leave a spouse and children, then the spouse gets either a child's share or R125 000.00 (one hundred and twenty five thousand Rand), whichever is the greater. (This is amended by the Minister of Justice occasionally). A child's share is calculated by dividing the number of children (including deceased children who have left descendants) plus one for the surviving spouse into the value of your estate. This rule applies irrespective of whether you and your spouse were married in or out of community of property; or according to the accrual system.
- If at the time of your death, you have no descendants or surviving spouse, then half of your estate goes to each parent. If one of your parents predeceases you, then his/her share will accrue to his/her descendants per stirpes (as discussed above). If your predeceased parent has no descendants (this would mean that you have no brothers or sisters), then everything will go to your surviving parent. If your
parents are deceased, your estate will be split into two and will accrue by representation to the descendants of each of your deceased parents.
- If you don't have a surviving spouse, or any descendants, or a surviving parent, your estate will devolve upon you closest blood relatives in equal shares.
- If you have no surviving blood relatives, then your assets may be forfeited to the State after a period of 50 years.
What are the legal formalities for executing a will?
- The Immovable Property (Removal or Modification of Restrictions) Act states that the court may remove or change conditions stated in a will regarding immovable property, if a beneficiary shows that the removal will be to the advantage of someone who, in terms of the will, is entitled to the property or to income from the property.
- The Subdivision of Agricultural Land Act limits the numbers of owners of agricultural land and prohibits the subdivision of agricultural land, except under certain specified circumstances.
- The Minerals and Petroleum Resources Development Act prohibits the transfer of a mining permit and states that there may not be any successors in title to any rights, permits, permissions or licences granted in terms of the Act.
- The Pension Funds Act states that the trustees of the testator's fund have the right to decide which of the testator's dependants will receive the fund's benefits.
- The Close Corporations Act states that a testator, who was a member of a close corporation (a ?CC?), may only dispose of his interest in the CC to a legatee or an heir under a redistribution agreement if the remaining members of the CC consent to the disposal.
You must be a mentally capable person of 16 years or older to make a will, The Wills Act provides as follows:
- You must sign at the end of the will and you must initial on each page.
- You must ensure that you do not leave a wide gap between the end of your will and your signature.
- The signature at the end of the will must be made in the presence of two competent witnesses over the age of 14 years, present at the same time.
- The witnesses must attest and sign the will in your presence.
- If you cannot sign and you have someone else sign on your behalf in your presence and by your direction, of if you can only make a mark instead of a signature, then a certificate of a Commissioner of Oaths is required. The Commissioner of Oaths must also sign each page of the will.
- 'sign? means the initial and full signature both as regards the testator and witnesses.
What other legalities should I bear in mind regarding my will?
- Disqualifying ex-spouse as heir
If you die within 3 months of getting divorced and you have left a valid will, your will shall be carried out as if your ex-spouse had died prior to your divorce.
If you do not alter your will within 3 months of getting divorced, then it will be assumed that you wanted your ex-spouse to inherit.
- Substitution of beneficiary
The Wills Act makes provision for the substitution of a beneficiary where an heir repudiates his inheritance or is disqualified from inheriting.
- Disqualified heirs
The Wills Act would disqualify a person from inheriting (benefiting in terms of your will if the person:
Spouses of those persons are also disqualified provided that they were spouses at the time of the execution of your will.
- signs your will as witness, or
- signs on your behalf, or
- writes out the will for you in his own handwriting.
Benefiting under a will includes receiving a bequest or inheritance or simply being nominated as an executor or guardian. The court has the power to vary this if it is of the opinion that there was no fraud or intention to unduly influence you.
It is interesting to note that although a person may become disqualified from inheriting from you in terms of your will, he/she may inherit that what he/she would have inherited as in intestate heir.
What happens if I want to amend my will?
If you make any deletions, additions, alterations and interlineations of your will, your signature must appear where the amendment takes place. Your signature must be made in the presence of two competent witnesses present at the same time, who must also sign where the amendment takes place.
If you want to have a new will written (ie revoke your previous will), then your new will should contain a revocation clause, If it doesn?t, then any provisions in your old will that are inconsistent with the provisions in your new will, will be deemed cancelled.