To Bequeath or Not to Bequeath?

A Note on the Importance of a Will.

A will is one of the most important documents a person will ever sign in their lifetime. It is the legally recognized means by which a person’s estate is distributed after their death.

The Consequences of Not Having a Will

Without a valid will, a deceased’s estate may devolve in terms of the law of intestate succession, which results in the estate being divided amongst the deceased’s surviving spouse, children, parents or siblings according to a set formula. The deceased essentially forfeits the right to decide who inherits and what they inherit. People who you may not have wanted to benefit from your estate may stand to inherit in terms of these laws relating to intestate succession.

Your Partner

If you have a partner, they may be excluded from inheriting your estate if you are not married or if your will is not updated from a previous marriage.

Your Children

Your children’s inheritance could pass to the Government Guardian’s Fund or appointed guardian rather than to a trust that will ensure your wishes for them are executed. The Guardian’s Fund was created to protect and manage money on behalf of certain persons, such as children (under 18 years old), people who are not capable of managing their own affairs or beneficiaries who could not be found. It is administered by the Master of the High Court. An account in the name of the beneficiary is opened with the Guardian’s Fund, accruing interest at a rate of 7.25% and will become claimable once the beneficiary reaches the age of 18 (or once the person is capable of managing their own affairs or the beneficiary learns of their inheritance). If the money remains unclaimed for 30 years from the time it devolved to the beneficiary, it forfeits to the state. Moreover, where fixed property is bequeathed, an executor may, with the consent of the Master of the High Court, sell the property and deposit the proceeds of the sale to the Guardian’s Fund as it may be difficult to administer the property once registered in a minor’s name, due to minors lacking contractual capacity.

Your Family

A suitably trained person should ensure that your will is drafted clearly and concisely to accurately reflect your wishes as, once someone has passed on, it is commonplace for family feuds to occur where the deceased’s wishes are disputed.

Your Estate

Where a professional executor is not nominated in the will, the government will administer the process. This could result in the estate taking years to be resolved.

Your Will

If your will is not compliant with the prescribed formalities of the Wills Act 7 of 1953, it could be declared invalid and thus unenforceable by the courts. It is therefore in the interests of the testator or testatrix (person drawing up a will) as well as their intended beneficiaries to consult with suitably trained persons in the drafting and execution of their wills. A suitably trained person is essentially a legal expert who not only has the requisite knowledge to draft a will that is clear, concise, formally compliant and accurately reflects the wishes of the testator, but one who is also knowledgeable about tax and other financial implications of devolving the estate.