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September is Wills month, a campaign successfully run by the Law Society of South Africa (LSSA) since 2008. The National Wills Week has become a significant event in the profession’s social outreach and access to justice initiatives. This success is due to the thousands of attorneys who generously contribute their time and expertise. This initiative invites members of the public to consult with participating law firms and have their Last Will and Testament drawn up free of charge.

What is a will, its importance and benefits:

A will is a legal document in terms of which a person records and outlines how they wish their estate to be distributed after their death.

As daunting as it is to think about our inevitable demise, a will is an important tool in planning our estate and protecting the interests of our loved ones, especially minor children.

Having a valid will provides for legal certainty as well as knowing that a trustworthy and reliable executor has been appointed. Having a valid will avoids unnecessary delays in the administration process which can be costly and prevents confusion and family feuds. Most importantly a valid will protects the interests of minor children.

A valid will provides peace of mind and security knowing that after your passing your legacy will be preserved and your wishes will be accurately conveyed. Although it is not a legal requirement in South Africa to have a will it is highly recommended.

The thought of your passing, let alone planning its consequences can be overwhelming and uncomfortable, however it is a necessary and imperative task to be dealt with to ensure your family is taken care of when you are gone and to avoid unnecessary burdens on your family. The concept of “freedom of testation” is recognised in South African Law meaning every person has the freedom to decide what assets are distributed to whom upon their death. These wishes are expressed and recorded in a will. However, where one passes away without a valid will, they forgo the opportunity to exercise this freedom of choice and their estate will be dealt with in terms of the Intestate Succession Act 81 of 1987. This results in the estate being distributed to their nearest blood relations in predetermined shares. Practically speaking, the law determines who the heirs are and in what proportion each heir will inherit from the estate. Having a valid will is the only way to ensure that your assets are distributed according to your wishes after your passing.

Requirements for creating a valid will in South Africa:

The requirements for a valid will in South Africa are governed by the Wills Act, 7 of 1953 in order for a will to be legally valid in South Africa, it must meet certain requirements:

• The person making the will (testator) must be at least 16 years old and of sound mind.
• The will must be in writing and signed by the testator or by someone else at the testator’s direction and in their presence.
• The testator must sign the will at the end of the document or, if this is not possible, in the margin near the end of the document.
• The testator must sign the will in the presence of at least two witnesses, who must also sign the will in the presence of the testator and each other.
• The witnesses must be at least 14 years old and must not be beneficiaries or heirs in the will.
• The will should include a revocation clause, which states that any previous wills or codicils are revoked.
• The will should clearly identify the testator’s assets and beneficiaries, as well as any instructions for the distribution of assets and the appointment of an executor.
• The will should be dated to establish the time of its execution

It is important to note these requirements, as failure to comply with these requirements may result in the will being declared invalid. Seeking legal advice when creating a will is advisable to ensure that it meets all of the legal requirements and accurately reflects your wishes.

What could make a will invalid?

Each case is unique and determining whether a will is valid or not will depend on the specific circumstances surrounding the creating of the will. Below are some common factors that could render a will invalid in South Africa:

• Lack of capacity – if the testator lacked the mental capacity to understand the nature and consequences of their actions when creating the will.
• Improper execution – if the will was not signed in the presence of two witnesses or if the witnesses did not sign the will in the presence of the testator and each other.
• Undue influence -if the testator was coerced or influenced into creating the will.
• Fraud or forgery – If the will was fraudulently created or forged
• Ambiguity or uncertainty – if the language in the will is unclear or ambiguous, it may be difficult to determine the testator’s intentions.
• Revocation – if the testator revokes the will by creating a new will or codicil, the previous will is no longer valid.
• Contrary to public policy – if the provisions of the will are contrary to public policy, they may be deemed invalid.

It is important to bear in mind that each case is unique, however should you have concerns regarding the validity of a will, engaging a qualified professional for legal advice would be advisable.

To conclude:

Estate planning is a crucial aspect of structuring an individual’s affairs and protecting their assets and a valid will forms a crucial part of your larger estate plan. Should you die without a valid Will, this will result in damaging consequences for your loved ones, as well as burdening the administration of your estate and making it more difficult.

For more information or for free assistance with the drafting, updating and safekeeping of your Will, please contact our offices: + 27 (0) 87 729 8234 or email: info@kavlaw.co.za