August 31, 2020

If you die without a Will, your wishes may not be followed

A Will is a legal document that sets out your wishes regarding the distribution of your property after your death.

National Will’s Week is an initiative held to raise awareness of the importance of having a Will. National Will’s Week also sees participating legal practitioners drafting free Wills across South Africa and will take place from 26 October 2020 until 30 October 2020.

During a person's lifetime, they have control over their belongings and finances. However, that control cannot be maintained after that person passes away. That is when a Will becomes important as it is a document in which a person ("testator”) makes sure that their belongings are distributed in accordance with their wishes after death. This means that a Will allows for a person to maintain some form of control over their belongings after their death.

What happens if a person dies without a Will?

>     If a person (“deceased”) dies without a Will, their belongings (“deceased estate”) will be distributed in terms of the Intestate Succession Act (“Act”). This is also known as the rules of intestate succession.

>     Due to there being no Will setting out the deceased's wishes, the Act sets out certain rules in respect of how the deceased estate must be distributed to their heirs (persons who will receive the deceased's belongings).

>     The Act aims to distribute the deceased estate to close relatives first (in a specific order), for example:

-      If the deceased is survived by only a spouse, the spouse will inherit the entire deceased estate. The term “spouse” also includes a same-sex civil union in terms of the Civil Union Act, a spouse in a religious marriage and polygamous spouses in terms of customary marriages. A spouse does not include a partner in a cohabitation relationship.

-      If the deceased did not have a spouse and is only survived by children, then the children will inherit the deceased estate in equal shares.

-      If the deceased is survived by a spouse and children, then the spouse will receive a child's share or R250 000, whichever is the greater amount, and the children will receive equal shares of the balance of the deceased estate.

-      There are further rules providing for extended family members of the deceased to be able to inherit. However. if the deceased died without a Will and had no-one who could inherit from the deceased estate in terms of the Act, the deceased estate will be forfeited to the State.

>     In light of the above, the deceased does not have any control over who will inherit if there was no Will in place. This might lead to instances where someone may inherit even if the deceased never wanted that persons to benefit from the deceased estate.

Can anyone draft a Will?

>     There are instances where a Will is not valid due to it not complying with the specific legal requirements.

>     There are strict formalities that must be complied with for a Will to be valid, this includes that it must be in writing and that every page must be signed by the testator and two competent witnesses (in each other's presence).

>     There are also other factors that must be kept in mind when drafting a Will to avoid any complications after the death of the testator. For example, a person who signs the Will as a witness or who writes the Will in their own handwriting, is not allowed to inherit from that Will.

>     Even though any person over the age of 16 years is allowed to draft a Will, it is advisable to obtain the assistance of a professional to assist with the drafting of a Will due to the strict requirements and the complexity of certain Wills.

 Creating a Will is important for any person, no matter the amount of belongings they may have. If there is no Will or an invalid Will, the danger exists that a person's deceased estate may not be distributed in a manner that they would have liked. It is important to ensure that a Will is drafted correctly to ensure that the wishes of the deceased can be followed after their death.

Did you know…A Will allows for a person to maintain some form of control over their belongings after their death.