When Life Changes, So Should Your Will
A Guide To Revising Or Revoking Your Will
Life is unpredictable, and as your circumstances change, so should your will. Whether it is marriage, divorce, the birth of a child, a new home, or changes in your financial situation, it is important to ensure your will reflects your current circumstances and wishes. Regularly updating your will helps to ensure that your estate plan accurately represents your intentions and provides clarity and security for your loved ones.
When amending or revoking your will, it is important to adhere to regulations outlined in the Wills Act to ensure your changes are legally valid and enforceable.
Updating your existing will
When updating your will, you may use a codicil. The word ‘codicil’ is derived from the Latin word, codicillus, meaning ‘a small writing or supplement.’ A codicil is a legal document that serves as an amendment or addition to an existing will. It allows for minor changes or the inclusion of new provisions without the need to rewrite the entire will. A codicil must adhere to the same legal requirements as the original will to be valid, including being signed and witnessed. However, it is not necessary for the codicil to be signed by the same witnesses who signed the original will.
A codicil is an effective tool for individuals who wish to adjust their will without going through the time and expense of drafting a new one. Codicils can accommodate a variety of modifications, including adding or removing beneficiaries, updating the executor of the will, altering specific bequests or provisions, addressing changes in marital status or the birth of a child, and reflecting changes in assets or financial circumstances.
How to create a valid codicil
- The testator must draft the codicil, ensuring it is clear and precise while outlining the specific changes or additions to the original will. It must explicitly reference the original will to avoid any ambiguity or confusion.
- In accordance with the validity requirements of the Wills Act, the codicil must be signed by the testator in the presence of two witnesses to ensure its legal enforceability.
- The witnesses must be at least 14 years old, legally competent to testify in court, and cannot be beneficiaries under the will or codicil to maintain impartiality and meet legal requirements. The witnesses do not have to be the same individuals who signed the original will.
- To ensure its validity, the codicil should be kept together with the original will, ensuring it is easily accessible and considered during the estate administration process.
- It is advisable to consult a legal professional to ensure the codicil is properly drafted and executed in compliance with South African law.
While codicils are useful for amending a will, they have limitations. They are ideal for minor updates, such as appointing a new executor or adding a small bequest. However, overusing codicils can lead to complications, especially if inconsistencies arise between multiple documents. For more significant changes, such as altering provisions related to major assets or updating beneficiaries, it is advisable to draft a new will to avoid confusion and simplify the probate process.
Revoking your will
Revocation refers to the act by which a testator/ testatrix cancels or invalidates a will. This can be done in its entirety or partially, with the testator revoking only certain provisions while leaving others intact. A testator / testatrix has the freedom to revoke their will at any time during their lifetime, provided the appropriate legal steps are followed.
However, there are two notable exceptions. First, in cases of a mutual will, which establishes estate massing, the surviving testator / testatrix who benefits from massing cannot alter the testamentary disposition outlined in the mutual will. Second, provisions in a duly executed antenuptial contract cannot be unilaterally revoked or altered by the testator / testatrix.
To revoke a will, two essential requirements must be met:
- Intention to revoke (animus revocandi) – The testator must clearly demonstrate the intention to revoke the will.
- Legally recognised act – This intention must be expressed through a legally recognised act, as outlined in Section 2A of the Wills Act.
Both requirements must be satisfied for the revocation to be valid.
Common methods of revoking a will:
- Creating a new will
A new will can revoke all prior wills. The new will should include a clause explicitly stating that it revokes all previous wills and codicils, ensuring that the most recent will is recognised as the valid one.
- Destruction of the will
If the testator physically destroys the will, for example, by tearing it, burning it, or otherwise intentionally damaging it, this constitutes revocation. The destruction must be clear and deliberate, reflecting the intent to revoke the will.
- Written revocation
A testator may also execute a written declaration specifically revoking the will. For this to be valid, the revocation must comply with the formal requirements for a will, meaning the testator must sign it in the presence of two competent witnesses.
- Marriage or divorce
Under South African law, a divorce does not automatically invalidate a will, but a bequest to a former spouse is generally revoked if the testator / testatrix dies within three months of the divorce, unless the will explicitly states otherwise.
Given the complexity of revocation, it is highly recommended to consult a legal professional to ensure the process is carried out correctly and is legally enforceable. This helps prevent confusion and potential disputes during the estate administration process.
Planning for the future
To avoid confusion and legal disputes, it is best to seek professional advice. Hammond Pole Attorneys offers expert estate services to guide you through the process, ensuring your will is valid and your wishes are clearly executed.
Blog by: Henrietta van Vollenstee
Rietta van Vollenstee: RietteVV@hammondpole.co.za