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Wills week: The importance of a valid will

The National Wills Week, a social-outreach and access-to-justice initiative of the Law Society of South (LSSA), from 11 to 15 September 2023, highlights the importance of having a valid will.

A will is a legal document that determines how your assets will devolve upon your death. It ensures that your estate is distributed according to your last wishes and, most important, that your loved ones and dependants are taken care of in the event of your death.

Contrary to popular belief, a will is not just for the wealthy. Any person over the age of 16 years may draw up a will, regardless of how small their estate may be.

A will allows you to:

i) control who inherits your assets and how much of your estate they receive;

(ii) make provision for the well-being of your children and loved ones; and

(iii) nominate a trusted guardian for your minor children when you are no longer there.

The task of executing a valid will is best left to a professional, like an attorney specialising in estate planning and administration, to avoid the likelihood of mistakes and delays in the estate administration process.  Though you can prepare a will yourself, all wills signed after 1 January 1954 must comply with certain formalities, as prescribed by section 2(1) of the Wills Act 7 of 1953.

These are:

i) the person making the will must be older than 16 years of age;

ii) the will must be in writing;

iii) every page of the will must be signed by the testator in the presence of two competent witnesses. Should a will not comply with the formalities as prescribed by the Act, the document will be invalid and the Master of the High Court may reject it.

If this occurs, the testator will be regarded as having died intestate. Though not a requirement in terms of the Act, it is recommended that a will be dated to avoid the risk of uncertainty where a prior will also remain in existence.

Should you die without a validly executed will, your estate will devolve according to the Intestate Succession Act 81 of 1987, with the result that your assets may end up in the hands of relatives who were not intended to be beneficiaries from your estate. Dying without a will may complicate the administration of your estate and may create uncertainties and conflict among family members. Your heirs will end up with the emotional burden of spending additional time and effort to settle your affairs after your death.

After your will has been drawn up and executed, it is not advisable to keep the document in your drawer or under your couch (as was reported recently about the late Aretha Franklin’s will). A will should be kept in a secure and easily accessible location. We recommend that wills be secured in a fire- and waterproof safe with an attorney or other trusted advisor.

Please contact Alicia Cupido-Woodman on email address or telephonically at 021-808 5655 about Wills Week and to assist with all estate planning enquiries.

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