Death is an unfortunate fact of life that most don’t want to think about. It is also something that is even worse to live through. During this period of mourning there is nothing worse than having to deal with the daunting and complex task of winding up a deceased estate.
Will services
- Planning of Wills.
- Drafting of Wills.
- Applications via e-mail.
- Safe custody of signed Wills.
- General information and advice relating to Wills.
- Online Will application and processing.
A Will allows one to:
- Provide for assets to be safeguarded for heirs.
- Arrange for your assets to be managed by a competent person on behalf of minor beneficiaries until such time as they are old enough to deal with the assets themselves.
- Request whether to be buried or cremated and your last wishes regarding the ceremony.
- Donate your body or certain organs for medical purposes.
- Ensure that family heirlooms remain in the family.
- Ensure the cost-effective administration of your estate.
- Impose certain special conditions to apply to your bequests.
- Plan to minimise any tax liability.
What happens if I don't have a Will?
Without a Will your assets will be divided and distributed according to the Intestate Succession Act, (Act 81 of 1987).
This will in short mean that:
- The Master of the High Court appoints an executor.
- Your assets will be divided between your spouse and children (or other blood relatives) according to the intestate act.
- The minor children’s inheritance will be under control of the government’s Guardian’s Fund.
- The Law of Intestate Succession may not recognize your ‘common-law’ spouse if no Will specifies otherwise.
Who can make a Will?
Any person older than 16 years can make a Will. The testator should be mentally capable of understanding the consequences of his or her actions at the time of signing the Will.
Planning a Will
The Will should provide for the following:
- If the husband (testator) is the first-dying.
- If the wife (testatrix) is the first-dying.
- If the survivor dies without having made another Will.
- If both the husband and wife die simultaneously.
- If there is obliteration of the family.
- If a beneficiary (child) is still a minor, to retain the bequest/inheritance in trust.
- If a child is still minor, to consider nominating a guardian.
Signing a Will
The signing of the Will is the most important step in validating a Will. The requirements for the signing of a valid Will are contained in section 2(1)(a) of the Wills Act 7 of 1953.
The following guidelines must be followed:
- Two impartial witnesses must be present during the signing of your Will. These witnesses must be over the age of 14 years, be of sound mind and capable of understanding the consequences of their actions and be able to testify in a court of law.
- You must sign the Will in the presence of both witnesses.
- You must sign the Will in full on the last page as well as at the bottom of every preceding page.
- If you can only sign your name by the making of a mark, it must be made before a Commissioner of Oaths who cannot sign as a witness also. The Commissioner of Oaths must co-sign each page of the Will. Two competent, impartial witnesses must still sign as well. In case of uncertainty, please contact us for the correct procedure.
- It is also advisable that the witnesses sign the other pages in your presence and the presence of one another. However, the two witnesses must sign the Will in full at the end in the space provided for their signatures, in your presence and in the presence of each other.
- Any person who is to receive any benefit under a Will, as well as your executor, trustee and guardian, including such a person’s spouse, cannot sign as a witness as this would disqualify them from receiving the specified benefit or hold the nominated position.
- Any deletion, addition, change or interlineation must be validated with signatures by you and two witnesses. These witnesses need not be the same who witnessed initially, but must be present when you sign.
Returning a signed Will for safe keeping
Return all original signed Wills to Legatus Trust for safe keeping, otherwise there will be no record of the signed Will.
ESTATE PRESERVATION PLAN (EPP)
Clientèle Life, in association with Legatus Trust, offers the Estate Preservation Plan which is designed to assist in ensuring that your last wishes and legacy are realised. The Plan protects the financial interests of your estate’s beneficiaries from the costs associated with the winding up of your estate, as well as providing financial security during this often lengthy process.
Click here to see the brochure on the Estate Preservation Plan.
Click here for a quick quotation. You can also go to our
BLOG for more information on the EPP.
Contact Nico van der Merwe at
nico.vandermerwe@legatus.co.za or
info@legatus.co.za to find out more about this great product.
For more information on
specialized fiduciary services, insurance, cash solutions, investments or
financial advise, contact
info@legatus.co.za or one of our marketers listed on our
Contact Page.
Please download the
Will Application with liquidity calculator below, complete it as thoroughly as possible and e-mail it to
info@legatus.co.za for drafting. Alternatively, the
Will Application Form can be printed, completed, scanned and e-mailed to
info@legatus.co.za for processing.
Please complete as much information as possible. Personal information and details of beneficiaries are required for accurate and executable Wills.
Download a Will application
FAQs
Over and above providing for the abovementioned contingencies, the Will must also provide for the following:
- Revocation of all previous testamentary acts.
- Appointment of an executor to deal with the administration and liquidation of the estate and the distribution of the assets to the heirs.
- Appointment of a trustee to manage the assets in trust on behalf of the beneficiaries until the happening of a future event.
- Exemption of executor and trustee to furnish security to the Master of the High Court.
- Conferring powers and duties upon the trustee to manage the trust funds and to utilise the income and/or capital for the benefit of the beneficiaries.
- Protection of the inheritance of a beneficiary from any existing or future marriage in community of property.
The Will has the advantage that it can be reviewed and revised as often as necessary in the light of changing family and/or financial circumstances.
It is particularly important that the Will should be reviewed periodically or whenever circumstances change, especially when you marry where the marriage is in community of property and the estate is substantial, when a child is born or when you get divorced or separated.
When you marry, your existing Will is not automatically cancelled.
Divorce does not automatically cancel your Will either, but any bequests to a former spouse shall be void for a period of three months after the date of divorce, after which period such bequests become effective and valid again if the Will has not been changed.
If the marriage is in community of property and the assets are registered in the husband’s name, he could find himself virtually dispossessed of half of his assets if his wife has no Will or if she has a Will nominating heirs other than her husband, or the other way around.
It is also important to revise your Will when you enter into a business venture or go on retirement.
If the Will is not reviewed when your circumstances change, it may result in unnecessary grief and also have severe financial implications.
According to the Wills Act any of the following scenarios will disqualify you from bequests in a Will.
Any person:
- who attests and signs a Will as a witness; or
- who attests and signs a Will as a witness and is also the nominated executor, trustee or guardian; or
- who signs a Will in the presence and by the direction of the testator; or
- who writes out the Will or any part thereof in his own handwriting; or
- who is the spouse of such a person (mentioned above) at any time of the execution of the Will.
A benefit includes the nomination of a person as executor, trustee or guardian.
In addition the common law provides for a number of cases where a person cannot benefit under a Will:
- A person who had unduly influenced the testator for the purpose of obtaining a benefit under the Will cannot take the benefit.
- A person who has married a minor without the consent of the latter’s parents or guardians cannot take any benefit under the Will, not even where the testator was a major at the time of making it nor even if the necessary consent had been obtained after marriage.
- A person who has caused the death of the testator cannot benefit under his Will. This is so whether the beneficiary caused the testator’s death directly or indirectly, e.g. by encouraging him to drink himself to death.
A Will should be duly signed by the testator and two independent witnesses. However, in abnormal circumstances like the national lockdown due to COVID-19, it will depend on a court to declare the Will valid or not, should it not meet the normal requirements. It is costly though and every effort should be made to rather comply with the normal requirements.
DOWNLOADS
Click here to download the Application form - complex estate
Click here to download the Application form - complex estate with liquidity calculator
Click here to download the Application form – simple estate
Instructions for Signing your Will
Wills Price Structure
