L25. Wills

1. Personal Wills

A will also be called a last will and testament is a legal document in which a person sets out what happens to their estate (the things that belong to them) when they die. The person can also nominate who they would like to appoint as the executor of their will that will administer their estate when they die. They can nominate more than one person to be their executors.

A person’s estate consists of all their assets and their liabilities which they had at the time of their death.

To administer an estate means to collect and take control of all the assets of the person that died, to pay all the debts to people they owe money to and then to distribute the balance to the heirs as per the deceased persons will. If the person died without a will then the court will decide how the balance of the money will be distributed to the heirs.

  • Why should a person have a will?

A will allows a person to decide who should be the beneficiaries of their estate once they die. It also determines who your executor will be. When a person dies without a will the Master of the Supreme Court will appoint an executor. This takes control away from the family and places it in someone else’s hand, which can become costly to the heirs as these appointed persons must be paid to execute the will.

  • Who is competent to make a will?

A person who draws up a will is known as the testator (male) or testatrix (female).

All persons 16 years and older can draw up a will to determine how their estate should be handled when they die unless they were mentally unable of understanding what they were doing at the time of making the will.

Who can act as a witness to a will?

Any person 14 years and older can act as a witness to a will, provided that when they witnessed the will, they understood what they were doing and could testify in a court of law.

A beneficiary to a will should not sign as a witness to a will because they will then be disqualified from receiving any benefit from that will. There are some exceptions to this rule and a beneficiary should seek legal advice as to these rules before becoming the executor.

When drafting a will take note of the following:

  • All persons (16 years and older) are competent to make a will.
  • 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)
  • 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)
  • 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)
  • A witness must attest the last page of the will in the presence of the testator/testatrix and each other.
  • You must include all details of the assets you want to bequeath as well as the names and details of your heirs.
  • 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)
  • Decide and indicate what should happen to the inheritance of a minor beneficiary (g. Must it be paid into a trust, the Guardian’s Fund etc?)
  • If you are the sole guardian of your minor child, indicate who should be appointed as the guardian of your child after your death.
  • 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.

Where to keep a will?

The original signed will should be kept safe by a trustworthy person or institution, as a copy of a will is not deemed a valid will. More than one signed copy of the original will can be kept by different trustworthy persons too.

Family and heirs should be told where/who is keeping a copy (or copies) of your will so that they do not struggle to obtain it after the person’s death.

Why and how to appoint an Executor:

By nominating their own executor, a person can ensure that someone they trust will take care of their estate and the interest of the heirs’ after death.

Because the administration process of a deceased estate is a complex process with many legal requirements, a person should ensure that they nominate someone who will be able to do what is required.

PLEASE NOTE:

A person does not have to appoint the institution/person drafting their will, as their executor. They can appoint more than one person to simultaneously act as executors. The person can nominate more than one person, in case their nominated executor is not able or willing to take up the appointment. They should also indicate whether they would need their executor to provide security to the Master for the performing of his/her duties. (if not exempted, the Master will request that security is provided to the full value of the estate – this is not something that a layperson will normally/easily be able to provide).

A normal prescribed executor’s fee is 3,5% (subject to change) of the value of the assets, however, a person is entitled to indicate a different fee in their will but need to ensure that their nominated executor agrees with this, if the fee is lower than the prescribed fee.

What are the requirements for a valid will?

Since 1 January 1954, all wills must be in writing. They can be written by hand, typed, or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses.

The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/testatrix. Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.

What are the requirements for a valid will, if someone cannot sign his/her name?

If a person cannot sign their name, they may ask someone to sign the will on their behalf or they can sign the will by making a mark (a thumbprint or across). When the will is signed by someone on behalf of the person making the will a Commissioner of Oaths must certify that they have satisfied themselves as to the identity of the testator/testatrix and that the will so be signed is the will of the testator/testatrix.

The Commissioner of Oaths must sign their certificate and they must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append.

their certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.

What is a codicil?

A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.

Must I amend my will after divorce?

A bequest to a divorced spouse in a will, which was made before a divorce, will not necessarily fall away after divorce. The Wills Act stipulates that, except where a person expressly provides otherwise, a bequest to a divorced spouse will be deemed revoked if they die within three months of the divorce. This provision allows a divorced person a period of three months to amend their will, after the trauma of a divorce.

Should they, however, fail to amend their will within three months after their divorce, the deemed revocation rule will fall away, and their divorced spouse will benefit as indicated in the will.

Who is disqualified from inheriting under a will?

The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on the instruction of the testator or as a witness. Consult a legal representative for more information in this regard.

What will happen if I do not leave a will?

If you die without leaving a will or a valid will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987).

2. The living will

Most people are familiar with a will or testament and understand the importance of having this legal declaration drafted, by which the testator nominates an executor to manage his or her estate and provide for the distribution of his or her property to beneficiaries when he or she dies.

But how many people have considered drafting a living will?

A living will do not deal with assets, heirs and beneficiaries, but with the philosophy of death and dying, and should be considered carefully and drafted by a professional.

A living will is a legal document expressing a person’s wishes regarding life-prolonging medical treatment when that person can no longer voice his or her wishes.  It is also referred to as an advance medical directive.

A typical clause in a living will reads as follows:

If the time comes when I can no longer take part in decisions for my own future, let this declaration stand as my directive.

If I suffer from physical illness or impairment expected to cause me severe distress, rendering me incapable of rational existence, from which there is no reasonable prospect of recovery,  I withhold my consent to be kept alive by artificial means and do not give my consent to any form of tube-feeding when I am dying; and I request that I receive whatever quantity of drugs and intravenous fluids as may be required to keep me comfortable and free from pain even if the moment of death is hastened. I withhold my consent to any attempt at resuscitation, should my heart and breathing stop and my prognosis is hopeless.

The living will tell the doctor and family that the patient does not consent to be kept alive artificially. It speaks for the patient at a time when the patient may be unable to communicate.

South African law and most religions accept the validity of the living will, but none of the main religions accepts euthanasia.

Euthanasia is against the law!

It is important to have a properly drafted, legal living will avoid far-reaching and traumatic consequences for the loved ones that stay behind.

Many lawyers who practice in the area of estate planning include a living will and a health care power of attorney in their package of estate planning documents.

The advantages of a living will

  • The directives respect the patient’s human rights, and in particular his or her right to reject medical treatment.
  • It encourages full discussion about end-of-life decisions.
  • It also means that the medical staff and caregivers are aware of the patient’s wishes and knowing what the patient wants means that doctors are more likely to give appropriate treatment.
  • It will avoid the situation where the patient’s family and friends have to make difficult decisions.

Disadvantages of a living will

  • Drafting this document can be very depressing.
  • The person may still be healthy and not in a position to actually imagine that he or she could ever be in the position where they would voluntarily give up living.
  • When the time comes to act on the living will, the patient might have changed his or her mind and it is then often difficult to amend the document.

Important points to consider

The living will not be incorporated or attached to the last will and testament, which is only acted upon after death.

A living will do not become effective unless the patient becomes incapacitated; until then the patient will be able to choose appropriate treatment.

A certificate by the patient’s doctor and another independent doctor certifying that the patient is either suffering from a terminal illness or permanently unconscious is required before the living will become effective. In the case of a heart attack, the living will do not take effect. A living will is only executed when ultimate recovery is hopeless.

You have to notify your doctor and family of your living will and preferably have copies of the document available for the doctor, hospital and family.

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