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Why make a Will

Many people associate the making of a will with death and often ignore this important matter – sometimes with disastrous and irreversible consequences.

In the course of your lifetime you sign numerous documents and contracts regarding individual assets in your estate, for example the sale of a house or car. These contracts are usually well considered decisions. In contrast to these, in a will you dispose of all your assets on death in a single document. A will is therefore an extremely important document.

By making a will you ensure that your assets are disposed of in accordance with your wishes after your death. This privilege is called “freedom of testation”.

In the event of your dying without leaving a valid will, your assets will be inherited according to the provisions of the Intestate Succession Act Number 81 of 1987. The provisions of this act are generally fair and ensure that your possessions are transferred to your spouse and children (if any).

However, the following problems may be encountered when you pass away without leaving a will:

If there is no will in which an executor is nominated, it can take a while to have one appointed. This can incur additional and unnecessary cost. Furthermore, the person who is appointed as executor may be somebody you would not have chosen.

The fact that there are no instructions on how to distribute your assets can cause discord and conflict among members of your family.

The most important aspect is that your assets would not necessarily be left to the person or persons of your choice.

The law does not recognise oral declarations such as “Dad always said that he wanted me to have this piano some day”. Unless a deceased person bequeaths something to you in terms of his/her will, you would not be entitled to lay claim to it.

When should I make a Will ?

Every person who possesses any assets should make a will to ensure that his/her estate is wound up in an orderly manner, according to his/her wishes and instructions.

If you have a will, it may be necessary to review it from time to time. Any one of the following circumstances could necessitate a change to your will:

  • Statutory amendments;
    From time to time laws are amended. These amendments may affect your personal circumstances.
  • Change of Circumstances
    Your personal circumstances may change and your will should be revised to accommodate these changes.

Consider the following :

Marriage

Your circumstances change drastically. You now have a spouse who may become dependent on you. Especially where the husband is the sole breadwinner, he would usually provide for his wife in his will. A woman who marries would possibly also bequeath her estate or part of it to her husband. In this case it is possible to draw up a combined will in one document.

Divorce

Your life style changes as do your financial obligations. It may be necessary to revoke your will or have it drastically altered.

Note than an existing will is not automatically cancelled or altered by circumstances. Only you can cancel or change your will by codicil or by executing a new will.

In one instance a man neglected to change his will after his divorce. He remarried and was killed in a car crash. The result was that his first wife (from whom he was divorced) inherited all his assets in terms of his former will. His new wife and children were left nothing.

Purchase and sale of property

Should you acquire property, you must consider to whom you wish the property to pass in the event of your death. Likewise, the sale of an asset could necessitate the amendment of your will.

Death of a beneficiary

The death of a beneficiary may require you to amend your will should your existing will not provide adequately for substitution of heirs.

Insurance

New insurance policies may also necessitate the planning of a new will.


Whom should I consult about my will ?

There are various institutions and professional people who draft wills. The ability of those who are prepared to draft a will must be considered. Are they legally trained and do they have the necessary knowledge and expertise to ensure, firstly that the document is valid, secondly that it complies with your wishes and thirdly whether its provisions can be carried out?

Because of the legal nature of a will it has become traditional for attorneys to do this work. They are qualified in law and can advise you on any problems which may arise with regard to your will.
The Wills Act prescribes the legal requirements for a valid will. If these requirements are not complied with the will may be invalid and useless. Often a will is invalid because the person who drafted it did not have the necessary legal knowledge to ensure that the requirements of the law were adhered to. The person who drafts a will should also have adequate practical knowledge to guide you in planning your will in such a manner that it will facilitate the administration of your estate.

Do not procrastinate – attend to your will -it is important!

 

Legal Topics

For the information of our clients, we have prepared articles on certain aspects of law that may be of interest. Please note that these are not detailed expositions of the law but are for information and interest only. Please obtain professional advice before you act in any way.