WILLS:

Why it is important to have a will or review your will regularly

In South African law, every person has freedom of testation which means that a person has the freedom to decide in what manner his or her estate must be divided upon his or her demise.  This can be done through the drafting of a valid will in which the Testator or Testatrix can determine the following:

  1. Who should inherit the assets of the Testator and/or Testatrix upon his or her demise.
  2. Who should be appointed as the Executor in the estate of the Testator and/or Testatrix.
  3. Who should be nominated as guardian(s) of the minor child(ren) of the Testator and/or Testatrix in the absence of a natural guardian.
  4. If he or she wishes to be cremated or buried.
  5. In whose care any pets of the Testator and/or Testatrix must be placed upon his or her demise.
  6. If any assets of the Testator and/or Testatrix should be kept in Trust, in the event where a beneficiary or beneficiaries have not yet attained a specific age, until the beneficiaries attain the specific age or until a certain event took place after which the Trust can dissolve, and the assets can be transferred to the beneficiaries.

Any person from the age of 16 years and older may make a will at any time unless at the time of the making of the will, the person is mentally incapable of appreciating the nature and the effect of his/her act.

In the event where a person does not have a valid will at the time of his demise, it does not mean that the State will inherit his/her assets, but that his/her estate will be divided in terms of the Intestate Succession Act.  This has to the effect that the estate of the deceased will not be divided according to his/her wishes, but in terms of legislation.

It is important to keep your will updated since assets are sold or new assets are acquired and sometimes, heirs pass away before the Testator and/or Testatrix.  It is therefore important to update your will when you either sell assets or acquire new assets, especially if the Testator and/or Testatrix want to bequeath specific assets to specific heirs.  It is also important to ensure that your will makes provision for substitute heirs if one of the heirs may predecease the Testator and/or Testatrix.

Feel free to contact Anél Malherbe at 079 412 3630 or by email at anel@malherbelaw.co.za to update your will or to have your will drafted.

Disclaimer

The information contained in this article is provided for general informational and educational purposes only and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting based on any content included in this article without seeking legal or other professional advice.