By John de Villiers – Editor of the LexisDigest: [DURBAN, 11 September 2019] Far too many South Africans die every year without leaving a valid will, causing unhappiness, confusion and disputes among family members, and delays and extra costs for the deceased’s estate.
Legal technology company, LexisNexis South Africa, with its purpose of advancing the Rule of Law, therefore supports the Law Society of South Africa (LSSA)’s National Wills Week initiative, which will take place from 16 to 20 September 2019.
During National Wills Week, participating attorney firms from across the country will be providing their services for free in drafting a new basic will. Those of us who don’t have a will should make use of this opportunity because attorneys, as the premier providers of wills and estate services, understand the legal aspects, problems and implications of wills and estates.
The most basic definition of a will (“Last Will and Testament”) is that it is a formal, signed, written document, in which a testator voluntarily sets out his instructions in unambiguous terms as to how his assets are to devolve following his death.
Only someone who is sixteen years old or more and mentally capable of appreciating the nature and effect of his act at the time of making the will, is competent to do so (Section 4 of the Wills Act, 7 of 1953). In addition, a witness needs to be fourteen years old or more and competent to give evidence in a court of law (Section 1(i)).
The most important reason for having a will is to ensure that the wishes and instructions of a testator regarding his estate are properly carried out after his death. Many of us will not leave behind complex or complicated estates, or even estates of high monetary value. This does not alter the fact that the drafters of our wills need to fully understand what our intentions and wishes are, and to have the required legal knowledge, skill and experience in order to express them in clear and understandable language in a valid, legally binding document.
Estate planning, wills, succession and the administration of deceased estates are inextricably linked to the proper drafting of a will. Once drawn according to the testator’s instructions, and approved by the testator, it should then be executed with all the formalities required by the Wills Act.
This is where the attorney steps in, ideally armed with legal research and guidance such as that provided in authoritative LexisNexis print and electronic titles, including Law of South Africa Wills and Succession, Administration of Deceased Estates and Trusts (Volume 31 – Second Edition), as well as web-based tools such as Lexis Practical Guidance Wills Trusts, Wills and Estates.
To make the attorney’s task easier, a testator should, depending on the circumstances, be able to provide information about, and/or have given some thought to various important aspects of his estate and intentions. The Wills Act further prescribes a number of necessary formalities in Section 2(1) for a will to be valid when it is executed (signed and witnessed).
The freedom of a testator to dispose of the whole or any part of his estate as he pleases is not absolute. To prevent it from failing in whole or in part it is therefore essential to appoint an attorney who is properly qualified and who will ensure that your will has been properly executed, is valid and binding; and is one which correctly reflects your wishes and instructions after you have died.
For more information and where to find a participating attorney go to https://www.lssa.org.za/our-initiatives/advocacy/national-wills-week
About the Author
John de Villiers has been the editor of the LexisDigest (formerly the GhostDigest) since its inception in February 2003.
He joined the then Korbitec as a software tester in May 1999 before starting the GhostDigest.
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