A Will is a document in which a person ("the testator”) makes sure that his/her belongings are distributed in accordance with his/her wishes after his/her death.
Who can make a Will?
- Any person of the age of sixteen 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.
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. It should be noted that a person who signs as a witness is disqualified from receiving any benefit from the Will.
- If the Will consists of more than one page, each page must be signed by the testator and by the witnesses anywhere on the page.
- 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 the making of a mark (like a thumbprint or a cross). In this instance, a commissioner of oaths must also be present when the testator makes the mark or someone else signs on behalf of the testator.
- Any provision in the Will may not be against the public interest or good morals.
What are the basic elements that must be included in the content of the Will?
- The Will must contain:
- a distribution of property;
- the extent of the interest in the property (full or limited ownership); and
- the identities of the heirs (the persons who must receive the property).
- The Will can also make provision for the nomination of an executor and a legal guardian of the minor children of the testator; a testamentary trust; and a clause stating that all previous Wills are cancelled.
What will happen if a person dies without a Will?
- If a person dies (“the deceased”) without a Will, the property will be distributed in terms of the laws of intestate succession.
- According to intestate succession, property will be distributed amongst the deceased’s family and children (if any).
- If there are no family and children of the deceased, the property will be forfeited to the State.
Will a divorce have any effect on a Will?
- A divorce will not invalidate the Will or the part of a Will where a bequest was made to an ex-spouse.
- The law provides that if the testator dies within three months after the divorce, it will be assumed that his/her ex-spouse died before him/her.
- If the testator dies three months after the divorce without changing his/her Will, it will be assumed that the testator wanted to include his/her ex-spouse in the Will.
- A person’s personal circumstances may change and his/her Will should be revised to accommodate these changes.
Where must a Will be kept?
- Wills should be kept in a place that is safe and where it can be easily found after the death of a testator.
- The testator must inform a reliable person of the whereabouts of his/her Will.
GLOSSARY OF TERMS:
BEQUEST: the distribution of property in terms of a Will.
EXECUTOR: a person appointed by a testator in the Will to see to the administration of his/her estate in terms of the Will.
INTESTATE: when a person dies without leaving a Will.
PROPERTY: all assets owned by a person, such as a house, vehicle and money.
TESTATOR: a person who has made a Will.
How can LegalWise assist you?
Should you enquire an explanation of your rights on this topic, please contact your nearest Branch.
How can LegalWise assist you?
Should you require an explanation of your rights on this topic, please contact your nearest Branch.
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