Securing Your Legacy: A Comprehensive Guide to Last Wills & Testaments

In honour of September being Wills Month, we are dedicated to equipping you with essential knowledge about the importance of estate planning. A Last Will and Testament stands as a foundational document, shaping the way your legacy is preserved and assets are distributed. In this article, we delve into the intricacies of Last Wills and Testaments, providing you with a comprehensive Q&A guide to demystify this crucial aspect of safeguarding your future.

 

What is a Last Will and Testament?

 

A Last Will and Testament is a formal written document in which an individual outlines their instructions regarding the distribution of their assets after their passing. The person named in the Last Will and Testament is referred to as the Testator or Testatrix.

 

In the event of a person’s death with a valid Last Will and Testament, they are considered to have passed away ‘Testate’. Consequently, the estate of the Testator/Testatrix is distributed in accordance with their wishes as outlined in the document.

 

This legal instrument empowers individuals to detail how their assets should be distributed, including the option to allocate a portion or the entirety of their assets as desired. Moreover, the individual can nominate heirs and appoint legatees within their Will. Additionally, they have the option to establish a Trust and designate Trustees in the document. Of paramount importance within the Last Will is the appointment of an executor. An executor is a person designated by the Testator/Testatrix in their Last Will and Testament to fulfil the terms specified in the document.

 

Why is it important to have a Last Will and Testament?

 

Possessing a Last Will and Testament holds significant importance, serving to facilitate the management of your estate and responsibilities by those you leave behind, while ensuring the fulfillment of your final wishes.

 

A Last Will and Testament acts as a safeguard, guaranteeing that your assets and personal belongings are distributed and passed on in accordance with your preferences. It provides the means to nominate heirs and appoint legatees who are to inherit after your passing. Essentially, your Last Will and Testament stands as a comprehensive inventory of your assets, accompanied by directives specifying who, how, and what must be bequeathed, disposed of and devolved with regard to your chosen beneficiaries.

 

Without a valid Last Will and Testament, a person is deemed ‘intestate’. In such a scenario, your estate’s distribution and disposal adhere to the regulations outlined in the Intestate Succession Act 81 of 1987. This can potentially lead to outcomes that diverge from your intentions. Such circumstances often lead to family disputes and costly legal proceedings to determine rightful beneficiaries. However, with a valid Last Will and Testament, these complexities can be averted entirely.

 

Requirements for a Will to be deemed valid:

 

Section 4 of the Wills Act 81 of 1987, as amended by the Law of Succession Amendment Act 43 of 1992, sets out the eligibility criteria for creating a legally recognised Last Will and Testament. This section stipulates that any individual aged 16 (sixteen) years or older can create a Last Will and Testament, except in cases where mental incapacity prevents them from comprehending the nature and consequences of their actions. In essence, the person drafting the Last Will and Testament must be in a sound mental state, possessing the capacity to understand their actions.

 

Section 2(1) of the Wills Act 81 of 1987, as amended by the Law of Succession Amendment Act 43 of 1992, outlines the procedural formalities necessary to validate a Will and have it accepted by the Master’s office.

 

These Requirements are as follows:

 

1. The Last Will and Testament must be signed at its conclusion or by another person in the presence and under the direction of the Testator/Testatrix. The term “sign” encompasses additional actions such as initialling by the Testator/Testatrix or someone acting on their instruction or marking the Will. Notably, only the Testator/Testatrix can apply a mark; witnesses cannot do so.
2. The signature must be done by the Testator/Testatrix or by another person, or acknowledged by the Testator/Testatrix. If executed by another individual, it must also be countersigned in the presence of two or more competent witnesses. The witness requirements are as follows: a witness must be at least 14 (fourteen) years old and competent to provide testimony in a court of law. It’s crucial to underscore that a witness cannot be a beneficiary of the Last Will and Testament they are witnessing.
3. Witnesses must attest and sign the Will in the presence of the Testator/Testatrix and each other. If the Last Will and Testament is signed by a person directed by the Testator/Testatrix, it must be done in the presence of this individual as well.
4. In the case of a multi-page Last Will and Testament, each page, except the concluding page, must bear the signature of the Testator/Testatrix or another person on any part of the page.
5. If the Testator/Testatrix utilises a mark to sign the Last Will and Testament or if another person signs on their behalf, a Commissioner of Oaths must certify the identity of the Testator/Testatrix. The Commissioner of Oaths must also endorse each page, excluding the page with their certificate, in their capacity as a Commissioner of Oaths.

 

For more information contact Hammond Pole Attorneys

Shannon Gerhard – ShannonG@hammondpole.co.za