Out with the Old (Year)

How to end your year right (in the legal sense)

It’s that time of year again – Christmas lights are up and twinkling and everyone is gearing up for the end of the year. December has finally rolled around and a lot of us are feeling the need to get some much-needed R&R.

And with that we all feel like the pesky personal administrative “stuff” that we have locked deep inside a cupboard somewhere, waiting for a “free day” can wait until our return from holiday. There is mulled wine to drink and a beach with our names all over it (or just a cosy couch with our names all over it).

Sure, we understand the sentiment. And in our personal capacities, completely get it. But we wouldn’t be good attorneys – who have your best interest in mind – if we said that was ok.

Because there is still stuff that you should be doing – to properly end this year “right”. 

You see, when one thinks about “the end” of a year, one is also (morbidly) reminded of the “bitter-end”. Yes, the end of the road.  The end of what was or ever will be. 

That’s a lot of descriptive. We know. 

But the end of the year kind of gets one thinking about their own end too. We don’t like to admit it with all the festive cheer in the air. But you wouldn’t be completely amiss if it wasn’t on your mind.

So, with that in mind and before we dampen the mood any more than we already have, let’s have a chat about one of the most important documents you will ever sign. Your will. 

All About Wills

We are going to assume that you know what a will is…

Ok, just to be sure, a will is a formal, written document that is signed (by you), in which you set out (voluntarily) exactly how you want your assets to be “passed down” or inherited following your passing. The language should be straight forward and not highfalutin i.e. easy to understand, so that you ensure everyone knows what you mean (and exactly what to do).

Now there are a few intricacies you should know about drafting a will - 

What does a will do?

Firstly, a will ensures what you can dispose of as a testator i.e. what you will be called once you have passed and left a will. 

In your will, you can leave your estate to beneficiaries, heirs, or legatees – those that will benefit from your will. Your estate is made up of the aggregate of your assets and liabilities. 

Your assets can include immovable property, jewellery, shares and unit trusts or even valuable fly-fishing rods and reels like Sage and Abel.  

A will also enables the testator to do some other more “legal orientated” things, such as – 

• Appoint an executor i.e. the person who is nominated to administer or deal with the winding up of a deceased estate;
• Appoint trustees i.e. the person/people who will take control of assets held in a trust (as custodians) until a future date;
• Name heirs or beneficiaries of the estate;
• Name legatees (or their substitutes) of the estate i.e. a legatee is a person to whom a testator makes a special bequest relating to a specific asset;
• Postpone the vesting of a bequest (something that is handed down in a will) subject to a condition,
• Create trusts, and
• Draft a will without naming beneficiaries (this is especially the case if a previous will is revoked, or an heir disinherited).

What can you put in your will?

You can put anything you want in your will provided it’s not illegal, impractical or against public policy.

Seriously.

You can choose to leave your entire estate to a Church or a caregiver or you can bequeath your entire estate to a charity of your choice. 

You can do whatever you want with your assets. It’s all your choice. Something that is known as freedom of testation (which is set out in Section 25 of the Constitution). The principal of freedom of testation, comes down to a testator having rather liberal rights to do with their estate as they wish, provided it’s in the public interest and not against the Constitution. 

And while that seems like a rather good thing – after all, it seems only right that you would be able to do whatever you want with your property - there are some common law principles which may limit or hinder this freedom of testation. They include – 

• a will cannot be exercised where it is unlawful, against good morals, too vague or impossible to perform (as we have already stated), and
• minor children of the deceased have a common law claim to maintenance. 

What if you don’t leave a will?

Well, if you don‘t tell people what you want to do with your estate, how do you expect them to carry out your last wishes?

In all seriousness, if you don’t leave a will  (meaning you pass intestate, literally meaning “without a will”) your estate will be divided according to intestate succession laws by means of the Intestate Succession Act 81 of 1987.

According to Section 1 (1) of the Intestate Act, your estate will be divided either wholly or in part as follows –

“(a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;

(b) is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate;

(c) is survived by a spouse as well as a descendant-

(i) such spouse shall inherit a child's share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and

(ii) such descendant shall inherit the residue (if any) of the intestate estate;

(d) is not survived by a spouse or descendant, but is survived-

(i) by both his parents, his parents shall inherit the intestate estate in equal shares; or

(ii) by one of his parents, the surviving parent shall inherit one half of the intestate estate and the descendants of the deceased parent the other half, and if there are no such descendants who have survived the deceased, the surviving parent shall inherit the intestate estate; or

(e) is not survived by a spouse or descendant or parent, but is survived-

(i) by-

(aa) descendants of his deceased mother who are related to the deceased through her only, as well as by descendants of his deceased father who are related to the deceased through him only; or

(bb) descendants of his deceased parents who are related to the deceased through both such parents; or

(cc) any of the descendants mentioned in subparagraph (aa), as well as by any of the descendants mentioned in subparagraph (bb),

the intestate estate shall be divided into two equal shares and the descendants related to the deceased through the deceased mother shall inherit one half of the estate and the descendants related to the deceased through the deceased father shall inherit the other half of the estate; or

(ii) only by descendants of one of the deceased parents of the deceased who are related to the deceased through such parent alone, such descendants shall inherit the intestate estate;

(f) is not survived by a spouse, descendant, parent, or a descendant of a parent, the other blood relation or blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.

(2) Notwithstanding the provisions of any law or the common law, but subject to the provisions of this Act and section 5 (2) of the Children's Status Act, 1987, illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation”.

And as you can imagine, if you have an estranged family member and have bad relationships with your children (it happens), passing intestate is not ideal.

So, the natural take away (and bottom line) is this – to avoid any unwanted results of not drafting a will, draft one and ensure it is updated. Regularly! 

Are there any requirements for a valid will?

In short – yes. 

The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. They are pretty straight forward, but it must be noted that even a small oversight can invalidate the entire will. 

To avoid this, the Department of Justice has therefore set out a “checklist” setting out the formalities of a valid will as follows – 

1.    “All persons (16 years and older) are competent to make a will.

2.    A will must be in writing. It can be written by hand, typed, or printed. (note that a person who wrote the will in his/her own handwriting (and his/her spouse) may not be one of your heirs or the executor in the will).

3.    The signature of the testator/testatrix must appear on every page of the will as well as at the end of the will (This signature must be made in the presence of two or more competent witnesses).

4.    Any person of 14 years and above is competent to act as a witness (note that a witness and his/her spouse) may not be one of your heirs or the executor in the will).

5.    A witnesses must attest the last page of the will in the presence of the testator/testatrix and of each other.

6.    You must include all details of the assets you want to bequeath as well as the names and details of your heirs.

7.    Decide who should be your executor and indicate this in your will (note that your nominated executor (and his/her spouse) may not be one of the witnesses to the will).

8.    Decide and indicate what should happen to the inheritance of a minor beneficiary (e.g. Must it be paid into a trust, the Guardian’s Fund etc?).

9.    If you are the sole guardian of your minor child, indicate who should be appointed as the guardian of your child after your death.

10.  Ensure that your original signed will is kept safe by a trustworthy person or institution, as a copy of a will is not deemed a valid will.”

In summary – anyone over the age of 16, and of sound mind can execute a will which must be witnessed by two competent witnesses.

How often should you update your will?

The rule of thumb is to review your will after a significant change in life events or circumstance. The most common (and obvious) examples of a significant change includes - 

• marriage, 
• birth of a child, 
• divorce, or 
• retirement. 

If your will is not updated after one of those occurrences, it could result in your new spouse or child not being provided for under your will or alternatively, your erstwhile ex-spouse still benefitting under your will (when you possibly wouldn’t want them to) #awkward.

Even more “awks” is the fact that a bequest to your ex-spouse, made prior to your divorce, won’t necessary fall away straight after the divorce. The Wills Act at Section 2B sets out that a testator has a period of 3 months after the divorce to revoke, and/or amend the will where an ex-spouse is set to inherit as a beneficiary or legatee. 

If the will is not revoked or amended within that 3-month period, then the testator’s estate will be divided as is set out in the will. Despite the divorce. 

In addition, Section 2B only applies where a testator dies within 3 months of the divorce. If the testator lives beyond this 3-month period and still doesn’t amend their will to reflect their new intentions, then our law requires the existing will to be given full effect, and the ex-spouse to inherit as envisaged in the unchanged will.

And this may not be the most ideal situation. Especially in the case of an acrimonious divorce. 

So, amend your will you must!

A change in life circumstance is not the only reason to review your will. In fact, it’s only the bare minimum. 

You should review your will whenever there are changes to laws that will impact your estate. For a lay person however, that may not always be easy to understand or decipher. 

We therefore recommend keeping in touch with a lawyer and law firm that your trust, such as NVDB Attorneys, who can guide you on any changes to laws that may impact you or your will. 

Reviewing your will at the end of every year will also assist in ensuring that it is well and truly up to date, containing everything you want to set out – in a way that is not unlawful, against good morals, too vague, impossible or against public policy. 

There are so many complexities and pitfalls that come with drafting a will. So, please get in touch with a suitably qualified attorney who can advise you on the best way forward. Annually is the safest (and best) option here. 

End your year right (in the legal sense) and review your will...

If you have any questions on the information we have set out above or have a personal issue which you want to discuss with a suitably qualified legal professional, do not hesitate to contact us at NVDB Attorneys. 

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart.