A Will is probably the most indispensable document that anyone will prepare during his/her lifetime. It determines what would happen to a testator’s accumulated assets at date of death and also how his/her heirs will be affected (possibly for the rest of their lives) by such wishes. It is therefore crucial that a Will be updated on a regular basis to make provision for any changes in assets or potential beneficiaries. As a consequence, Wills must not be drafted to only contain important sounding legal terms but should also be practical to execute during the administration process.
More important aspects to consider when preparing a Will
- Are there enough cash available to cover the expenses relating to the administration of the estates.
- The identity of the Executor of the Deceased Estates.
- Provisions for simultaneous death of both spouses.
- Nomination of Guardians for minor Children.
- Provision for minor children by way of Testamentary Trusts.
- Possible Usufruct or Habitatio Rights
Statutory requirements for a valid Will in South Africa
- Any person (of sound mind), and 16 years and older, is free to prepare a Will, in order to determine how his/her estate would devolve upon his/her death.
- Every Will must be in writing (an oral Will or a video recorded Will) does not comply with the Wills Act 7 of 1953
- Every Will must be in writing (an oral Will or a video recorded Will) does not comply with the Wills Act 7 of 1953.
- The Will must be signed by the Testator, at the end of the document (as opposed to the bottom of the last page).
- If a Will consists of more than one page, each page must also be signed by the Testator.
- In addition, the Testator must sign his Will (or confirm his signature) in the presence of two or more competent witnesses (who must be present at the same time).
- The witnesses must also sign the Will, in the presence of each other (as well as the Testator).
- Should the Master of the High Court refuse to register a Will (after death of a Testator) due to the non-compliance of any of the above, the High Court may be approached for an order, in terms of Section 2(3) of the Wills Act 7 of 1953 to declare such document as a valid Will.
Administration of Deceased Estates
The administration process of a person’s deceased estate is activated when an individual dies, leaving property, or a document that purports to be his/her last Will and Testament. The estate must then be administered and distributed in terms of the deceased’s Will or failing a valid will, according to the guidelines set out in the Intestate Succession Act 81 of 1987. The procedure which must be followed to administer a deceased estate is prescribed by the Administration of Estates Act 66 of 1965 (as amended). The primary function of the Executor or Master’s Representative (with Section 18(3) Estates), is to take control of a deceased’s assets, to liquidate assets (if applicable), to pay all creditors and administration costs, and then to transfer the balance of any money / assets to the heirs of the deceased. The whole process, from the reporting of the estate (and appointment of Executor), to the finalization thereof, takes place under the supervision of the Master of the High Court, who ensures that the testator’s wishes are honoured (if contained in a Will), or that the law is complied with (in the absence of a proper Will). Our knowledge and experience is the key to avoid the frustration that heirs often experience when confronted with this complicated legal process, during their time of grieve.