Understanding The Different Types Of Wills – Which Will, Will Work The Best For You?

Drafting a will is a vital step in planning for the future, serving as a legal roadmap for your loved ones to follow when you are no longer here. It ensures your assets are distributed according to your wishes, provides financial security for your family, and helps avoid unnecessary disputes during a difficult and emotional time.

However, there are various types of wills each designed to suit different situations, needs, and preferences. While all wills must comply with the validity and legal requirements outlined in the Wills Act of South Africa, understanding their differences and purposes can help you select the one that best aligns with your circumstances and wishes.

 

Testamentary or Ordinary Will

A testamentary will is the most common type of will, serving as a legal document through which you can outline how your assets should be distributed after your passing. It allows the testator to designate beneficiaries, appoint an executor, and provide instructions for administering their estate. A valid testamentary will must be signed and witnessed according to legal requirements. It can also include provisions for guardianship of minor children, funeral arrangements, and other personal wishes. This type of will becomes effective only upon the testator’s death, ensuring that their wishes are honoured in the distribution of their estate. It is recommended to have this will prepared with the assistance of an attorney or professional estate planner to ensure compliance with legal requirements.

If you pass away without a will, or if your original will cannot be found, you are considered to have died intestate. In this case, your estate will be administered according to the Intestate Succession Act. Intestacy can also arise if your will is deemed invalid, such as if it was improperly drafted, and no previous valid will exists.

 

Living Will

A living will is a document that lets you express your preferences for medical care in case you become unable to communicate them yourself. There are various reasons why an individual might consider having a living will. It ensures your wishes are honoured when you are unable to communicate, thus sparing your loved ones from making difficult life-or-death decisions. If you wish to donate your organs, a living will provides clear instructions. It can also prevent your family from shouldering medical expenses for prolonged life-support efforts when recovery is not possible. By having a living will, you gain peace of mind, knowing that your desires will be followed in the event of a tragedy. Unlike a last will and testament, which only takes effect after death, a living will is active during your lifetime if you become incapacitated. While not legally required, it is advisable to consult a lawyer or healthcare professional when drafting a living will to ensure clarity and to avoid any ambiguity.

 

Joint Will

A joint will is a single document that is created and executed by two individuals, usually spouses or partners. This type of will is intended to ensure that both party’s assets are distributed according to their mutual wishes. However, it is important to note that a joint will can become complicated if circumstances change, such as in the event of a divorce or the death of one party.

Some key considerations regarding joint wills include the fact that they can be modified while both partners are alive, provided both parties agree. However, once the first spouse passes away, the surviving spouse is unable to alter the joint will, even if circumstances change. While the surviving spouse can create a new will to name new beneficiaries, they cannot include provisions that contradict the terms of the original joint will. This creates a binding commitment to the agreed-upon distribution, ensuring the wishes of both parties are respected after the first spouse’s death. To fully understand the potential implications and navigate any complexities, it’s advisable to consult with an attorney.

 

Mutual Will

A mutual will differs from a joint will in that it involves two individuals, each creating a separate will. Mutual wills can either be drafted as one document, signed by both parties, or as two separate but identical wills that include a binding agreement. The key distinction is that the wills contain reciprocal provisions, where each party agrees to leave their assets to the other and specifies how the assets will be distributed once both individuals have passed away. Mutual wills are commonly used to protect children from a previous marriage or relationship. For example, a couple may agree that after one dies, the estate will pass to the surviving spouse and then to their children, preventing the survivor from disinheriting those children. Mutual wills are often used by couples who want to ensure their assets are protected and ultimately passed on to their children or other designated beneficiaries, offering peace of mind that their wishes will be honoured even after one party’s death.

 

Planning For The Future

To ensure your will complies with the Wills Act of South Africa and reflects your specific wishes, it is highly recommended to seek guidance from a legal professional. Whether you are drafting your first will or updating an existing one, professional legal advice is indispensable to safeguard your assets and ensure your intentions are properly executed.

 

For expert support in estate planning and administration, contact Hammond Pole Attorneys today. Our team is dedicated to helping you make informed decisions that protect your legacy and provide peace of mind.

 

Blog by: Michelle Seaton-Smith