When you turn 16, you are legally competent to execute a Will. Having a Will is essential whether you are rich or poor. The death of a loved one is traumatic to the people who are left behind and should you die without a Will it will make matters worse for them. If a deceased passed away without a Will, the law of intestate succession will apply and your property will be distributed amongst your family (if no family, the State). The administration of your deceased estate will be very complicated and take a long time to finalise.
Things to consider before you draft a will:
- Make a list of your property. You do not have to specify each teaspoon in your Will, but if you want to bequeath a valuable item to a specific heir, such item must be clearly described.
- Make a detailed list of your heirs and write down as much information as you can such as their full names, identity numbers, and your relationship with the heir. It would also be a good idea to consider alternative heirs in case the original heir is pre-deceased.
- Decide which items you want to bequeath to which heir.
- Nominate an executor. An executor can be a professional person, but also a friend or family member. It is important to provide an executor who is not a professional with the power of substitution so they can appoint a professional if they need assistance.
- Nominate a legal guardian if you have minor children.
The formalities and other legal requirements:
The Master of the High Court is very strict when it comes to compliance with the formalities and legal requirements. If the formalities and legal requirements are not complied with, the Master will reject your Will and your deceased estate will become intestate. Below are some of the essential aspects:
- You must be older than 16 years to execute a Will.
- The Will must be in writing.
- Each page of the Will must be signed (as close as possible to the last line on each page) by yourself and two witnesses, who must be older than 14 years.
- You and the witnesses must sign the Will in each other’s presence and the Will must indicate the date and place of signatures.
- If any changes are made to the Will, you must sign/initial next to those changes, together with the witnesses.
- Heirs, guardians, executors, or trustees (and also their spouses) are not allowed to witness the Will.
It is best to approach a professional to assist with the drafting of a Will, for example, an attorney. Each Will is different and the professional will guide you to ensure that you make a Will that is legally valid and expresses your wishes clearly. It is important that you provide the professional with all the information you considered before drafting your Will. If applicable, it is also a good idea to discuss the possibility of creating a testamentary trust, especially if you have dependents. Also, make sure that you understand the contents of the Will and that it reflects your wishes accurately.
A last word of warning – If you get divorced must draft a new Will within three months after the date of divorce. Section 2B of the Wills Act states that you have made a will before getting divorced, and then die within 3 months of the date of divorce, for the purposes of implementing your will, your former spouse will be deemed to have died before you.
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