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  Legalwise Wiseup  
     
  31 January 2018  
     
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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.

Who can make a Will?

  • Any person who is 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.
Did you know?

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 (“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.

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  Inside this Issue no 12  
 
Letter from the CEO
Legal Expenses Accidental Death Benefit
Getting to know the debt counsellor and the consumer
Actual case: Nedbank Limited v Jones and Others
Exit this way:
can you cancel debt counselling?
What is an Administration Order?
What is an Emoluments Attachment Order (“EAO”)?
What is a Will?
Empowering the community of Zandspruit through financial literacy
Frequently asked questions
Making it easier for you to keep in touch
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