First of all, if you own assets of any sort that have some value (talking of a few thousand plus), you should write a will. So that’s probably most of us over the age of 18 (although there are some younger than that too who qualify). If what you have is less than R125 000 in total (that’s including bank statements, vehicles, jewellery and property – anything) then it’s less of a problem than if your assets are over that amount, but it’s still an essential thing to do.
less valuable assets
The main thing it does is avoid problems for the people you leave behind – there is no fighting over who gets what or who gets the most etc. The executor will have less of a headache if you have a will and your will is clear (see Intestate article).
So, what makes a legal will?
General
From 1 January 1954 it is a requirement that the will must be a written document. You can write it by hand (but please make it legible), type it or print it (anyone still using a typewriter? I think not…).
It must be signed by the testator/testatrix (see below for explanation). If they can’t sign but can make a mark (‘X’ marks the spot) or someone else has to sign for them(not the heir), then this must be done before a Commissioner of Oaths. The Commissioner must attach a certificate to the will. The signatures must be at the end of the will.
If the will is longer than 1 page, then every other page must be signed by the testator/testatrix (AND the Commissioner of Oaths if the situation requires it as above), anywhere on the page. Only the last page needs to be signed by everyone and in the specific places provided for this.
Testator/Testatrix
This is what the person who draws up a will is called; the one who wants to state what goes to whom. If you are 16 years or older and you are deemed competent and not mentally challenged (ie you understand what you are writing and the consequences of what you have written at the time of writing the will), then you should make a will in order to determine how your estate will devolve upon your death.
Witnesses
A will must be signed by 2 witnesses in order to be legal. These witnesses must be 14 years of age or older and must legally be competent to give evidence in a court of law – if they can’t, find 2 other witnesses!
The heir/s cannot be witnesses – if they are, they lose out on benefiting from the will.
Executor
This can be fleshed out quite a bit more, but basically you should appoint someone who will be competent to sort out the estate. It does not need to be an attorney, accountant or financial institution – they will charge you a lot do to the work. Appoint a blood relative or spouse to save on executor’s fees and make it someone you trust, who will work for the benefit of the heir/s and not their own pocket.
more valuable assets
Codicil
This is an addition to the original will. So if the content of the original will needs to stay as is, but you want to add something to it (say you won a Ferrari and want to leave that to Joe, your great-nephew twice removed, because he will appreciate it more than anyone else), then you simply add a codicil.
The rules for a codicil are the same as for the original will, so make sure you follow them or the codicil will be invalid (and Joe will not get the Ferrari). You don’t need to use the same 2 witnesses as the original will (but you must have witnesses as for the original).
Conclusion – the will has been written
And now, as they say, the fat lady can sing, because your stuff will go where you want it to go when she’s done! But hopefully she’ll wait a while longer, because you don’t want to go yet, do you?
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What is the position since one of the witnesses to my will has died?
Hi Elizabeth. A witness to your will dying doesn’t change the validity of the will. I would however suggest that you revisit your will if it is an old one, and update it, which you can do at any stage.
my wife was appointed as an executrix of a friend’s estate.He has just passed away and the attorneys who drew up the will have been requested to proceed with finalization.Nobody has contacted my wife.What is the situation.?
David, if your wife was named executrix in the last will then they HAVE to appoint her by law as that was the deceased’s will – they can’t just appoint themselves to do the job. Do you have a copy of the will? If so I would just go to them with it, or approach the Master of the High Court with the will. You also don’t have to include them in the administration process unless the will stipulates this. It’s really all about what the will says.
Hi
My parents have a will and I have been nominated as the Executor but my Mother needs to know if she passes away before my Dad who has from dementia, what needs to be done for me to manage my Dad’s affairs please?
Stephanie, I would advise your parents to have separate wills as this will simplify the process should one of them die. Your mother would have to stipulate in a “Living will” the care requirements she desires for your dad and the financial provision needed for that – probably in the form of a trust, with I would presume you and another trusted family member as trustees (since you would have his interests at heart more than a financial institution would have and it would cost less). As for your dad’s will – you don’t say how advanced the dementia is so I don’t know if he is able to understand it all (has “testamentary capacity”). I would have a basic will written up (eg leave everything to spouse or children) and have your dad sign it in front of an attorney or someone who is able to verify that your dad is mentally still capable, and attach a medical certificate from your dad’s doctor verifying the state of your dad’s dementia at the date of signing. If your dad is no longer of testamentary capacity you would have to approach the court for approval to create a will (take medical certificates as proof). Please visit this link for more information: http://www.alzheimers.org.za/AboutAlz/Legfin