A Will provides a person with some control over his/her belongings after his/her death. People often underestimate the value of having a Will or they are simply put off by the thought of having to draft a Will. This might be due to not always understanding what can be included in a Will. There are a number of aspects that can be addressed in a Will, the main one being how a person’s belongings must be distributed after his/her death. The contents of a Will depend on each person’s personal circumstances and what s/he wishes to happen after his/her death. This article will provide some basic insights on what can be included in a Will.
What is a Will?
- A Will is a document in which a person ("testator”) makes sure that his/her belongings are distributed in accordance with his/her wishes after his/her death.
- However, this does not mean that a person can put anything in a Will. The contents of a Will must:
- be possible to execute, for example, a testator can only distribute something in a Will if s/he is the owner of it;
- not be vague or unclear, for example, it must be clear as to what exactly must be distributed and to whom it must be given; and
- not be against public policy or illegal.
Who can be mentioned in a Will as a beneficiary?
- A testator can decide who should benefit from his/her estate after s/he died, for example, a specific person, a company or a trust.
- It is in the best interests of the testator and the beneficiaries that the identity of the beneficiaries is clearly set out in the Will. If there is any uncertainty, it might lead to the wishes of the testator not being fulfilled correctly. For example, if the testator had three friends with the name Xabiso, it would be very confusing if the Will only provides that “…my friend Xabiso must inherit R10 000”. The testator can avoid this confusion by including more details, such as a surname or identity number (if possible).
Will a beneficiary always inherit the benefit mentioned in the Will?
- There are two types of beneficiaries from a Will:
- Legatees refer to beneficiaries that must inherit a specific belonging. For example, the testator provides that “…my daughter, Mary-Anne Jones, must inherit my piano and R10 000”.
- Heirs refer to beneficiaries that must inherit from the residue of the estate. For example, the testator provides that “…my friend, Tsidi Masemola, must inherit the residue of my estate”.
- It is important to note that just because someone is mentioned in a Will, that it does not always mean that s/he will receive that benefit. A legatee will only receive his/her benefit mentioned in the Will after all the debts and administration costs of the estate have been paid. An heir will then only receive his/her benefit from whatever is left over in the estate (the residue). If there is nothing left over after the debts were paid and the legatees received their benefits, then the heirs will not receive anything.
What belongings can be mentioned in a Will?
- A testator can only mention belongings in a Will of which s/he is the owner. For example, a computer borrowed from the testator’s friend cannot be put in the testator’s Will and given to someone else after his/her death.
- A testator must also bear in mind that if s/he is married in community of property, there is a joint estate that is equally owned by both spouses. This means that when a testator dies, only his/her half share of the joint estate can be distributed according to his/her Will.
- It is also important that the belongings are described in the Will with as much as possible details to avoid confusion. For example, if the testator has more than one motor vehicle, it would be confusing if the testator only provides that “…my car must be inherited by my brother, Andrew Mitchell”. The testator can avoid this confusion by including more details, such as the make of the motor vehicle, the year in which it was manufactured, the registration number, the colour and so on.
What other clauses can be included in a Will?
- Apart from mentioning who must inherit what from a testator’s belongings, a Will can also include the following clauses:
- that all previous Wills must be revoked/cancelled. If this clause is not there, all previous Wills of the testator will apply and be read together, which may lead to confusion and the wishes of the testator not being clear;
- who must be appointed as the executor of the estate. The executor is the person who will be responsible for the administration the testator’s estate in terms of the Will;
- who the preferred legal guardians of the testator’s minor children should be when s/he dies;
- whether a trust must be created, who must be appointed as trustees and other terms and conditions of the trust;
- funeral directions; and so on.
Do you have any more questions?
What are the requirements for a valid Will?
- It must be in writing.
- The Will must be signed at the end of it by the testator and two witnesses.
- The testator and the two witnesses must sign the Will in the presence of each other.
- If the Will consists of more than one page, each page must be signed by the testator and by the witnesses.
- If the testator is not able to sign the Will (for example, where s/he cannot read or write), someone can sign the Will on his/her behalf or the testator can sign the Will by making a mark (like a thumbprint or a cross). A commissioner of oaths must be present when the testator makes the mark or someone else signs on behalf of the testator.
Who is a testator?
- If a person has a Will, s/he will be referred to as the testator.
- Any person who is 16 years or older may make a Will, unless s/he is mentally incapable to appreciate the nature of making a Will.
- It is advisable that a person obtain the assistance of a professional to draw up a Will, for example, an attorney.
Can a beneficiary in a Will be disqualified from inheriting?
- Certain actions of a nominated beneficiary or his/her spouse may disqualify him/her from inheriting, such as:
- if the beneficiary or his/her spouse signs the Will as a witness;
- if the beneficiary or his/her spouse signs the Will on behalf of the testator;
- if the beneficiary or his/her spouse writes out the Will of the testator; and/or
- if the beneficiary intentionally or negligently caused the death of the testator.