Many people, guru’s especially, go on about the importance of legacy. They say things such as, “if you take how long the universe exists and compare it to our lifetime, our lives are only ‘worth’ 3 seconds.” One… Two… Three… What a scary reality to be in. With all this discussion about legacy, it is crucial to understand the concept of a will, how to write a will, what is a will, and the purpose of a will. After all – this might be the only way to actually have a legacy.
What is a will?
In the Lawer jargon, A will, a “Last Will and Testament,” is a formal, signed, written document. A testator willingly sets out his instructions in unequivocal terms as to how his possessions should flow upon his death. Or, in less formal terms – who gets what when your heart stops.
There needs to be such clarification, i.e., “Last Will and Testament,” because there are many types of wills. Another is a Living Will. A Living Will explains when to legally kill you if you are brain dead. For example, if you are in an accident and keep alive by live support, when is it okay to help reduce load shedding and pull the plug?
What happens if you don’t have a will?
According to the Intestate Succession Act, 1987, your inheritance will devolve if you die without leaving a valid will (Act 81 of 1987). This implies that your estate will be split according to a formula among your surviving spouse, children, parents, or siblings.
Although, when there is no will in place, things become pretty sticky. If you are married, the clauses of your marriage play a vital role, such as whether or not you are married in a community of property, or not. Things can further complicate this, such as items in your name, say a house, but has a usufructs clause.
A Usufructs clause, in simple terms, means the right to enjoyment. Say your parents put their home in your name; they would likely include a usufructs clause, suggesting that you can’t now kick them out of this home. They have a right to be there.
This can get even more complicated, as there are different ways or “formulas” that can be used to distribute wealth, such as Stripes or Per Capita.
You may be asking yourself, “well then, Max, what’s the point of writing up a will anyways?!” with a beautiful grit from frustration ringing in your voice.
A will is more than spiting your brother because he ate the last piece of cake; when done correctly, a will can protect you from tax and protect your children.
How to draw up a will at home for free?
Before you smash, google with “will template South Africa.” You should understand the basics of what is required. To know how to draw up a will at home for free, you should first understand how to make a will legal in South Africa. Knowing how to draw up a will is great, but if the law doesn’t recognize it, your possessions will still be split up evenly, and your brother will laugh at getting a piece of your cake for the final time.
Requirements of a Will in South Africa
What are some of the basic requirements for a valid will in South Africa? Great question. I’d love to answer it.
Some of the necessary conditions for creating a legal will are as follows:
- The testator must be over the age of sixteen.
- When the will was written, the testator had to be mentally competent in comprehending the implications of their acts. Wills or clauses drafted under pressure, undue influence, or by mistake shall be declared illegal. After 9 whiskeys, persuading your father-in-law to include you in his will is frowned upon, and the relevant terms may be challenged in court. The person making a claim bears the burden of evidence in proving the testator’s mental infirmity or lack of purpose.
- The will must be written down. It can be handwritten or printed, as long as it is legible. Don’t forget to sign in with your name.
- At the end of the will, the testator must sign. While the act is unclear on this point, it is suggested that the signature be put right below or as close to the final line of the will as feasible. If there is a considerable gap between the last line of the will and the testator’s signature, the will may be considered void. Furthermore, where the testator is paralyzed or too weak to sign, the following techniques of signing may be required:
- A testator has the option of having someone sign on their behalf. In this case, the signature must be witnessed by the testator, at least two capable witnesses, and an oaths commissioner. The will must be verified and each page signed by the commissioner of oaths.
- In the presence of at least two competent witnesses and an oath commissioner, a testator may sign a will by creating a mark or thumbprint. The will must be certified and each page signed by the commissioner of oaths. Witnesses are not permitted to sign with a mark or fingerprint.
- If the will is more than one page long, the testator (or someone acting on his behalf) must additionally sign each subsequent page, anywhere on the page.
- On the last page, the testator’s signature must be made or recognized in the presence of two competent witnesses simultaneously. A competent witness is someone above the age of 14 who is mentally competent and capable of comprehending the implications of their acts and can testify in court, according to section 1 of the Wills Act.
- The last page of the will must be signed by the witnesses. Signatures can be placed anywhere on the last page, although it is advised that they be placed below or as close to the last line of the will as feasible. The witnesses witnessed the testator’s signature or the signature of the person signing on the testator’s behalf. As a result, the witnesses are not required to read the will. It is advised that the witnesses include an attestation clause along the lines of: “We, X and Y, affirm the signature of testator Z and declare that we signed the will of Z on DATE in the presence of each other and of Z.”
- As a witness, a receiver or executor shouldn’t sign a will. If they do, they risk forfeiting their inheritance rights under the will. However, the legitimacy of the will is unaffected.
- While dating your final will and testament is not a statutory requirement for validity, it is strongly suggested to avoid any misunderstanding if more than one will is discovered.
What a mouthful. Now that you understand the legal side of how to draw up a will in South Africa, time to get into the technicalities; what are some of the steps you can take to actually put together your “Final Will and Testament.”
How to draw up a will – the actionable steps.
- List, nominate, and decide:
- Get and Sign a will
- Keep it safe
List Nominate and Decide
Make a thorough list of your property, including a complete description. For instance, a 2015 red Lamborghini with the registration number CA 123 WC; and/or R100 000 in a Nedbank savings account.
Make a complete list of your heirs, including the names and ID numbers of the people who will inherit your property (“heirs”) and the sort of relationship you have with them. Helena Van Zyl, for example, has the identifying number 8201xxxxxxxxx. Alternative heirs should also be listed in case the original heir died.
Get and Sign a Will.
If you do insist on doing this at home, this is the part where you run to google and type in “will template South Africa.” Find a Will temple from South Africa, and make sure you set it up in a legal manner as described above. Although it is highly recommended that you get the assistance of a lawyer or attorney during this process.
Keep It safe.
People need to find your will to enforce it once you are no longer running around and breathing the air on this lovely planet. This is not to say you should leave your will on the dining room table, but don’t hide it in a secret treasure chest in the roof either. When you use a legal entity, wills may be kept on their premises.
Creating a will is a complicated yet vital process. At the end of the day, speaking for someone when they can’t speak for themselves will remain a complex task. Especially when there are great fortunes at stake, and all the relatives smell “free money” floating around. That’s why many professionals dedicate their lives to understanding this very procedure.