Upon the death of an individual, all remaining assets are distributed amongst remaining family and friends as part of the liquidation of the deceased estate. Confusion, and sometimes uncouth behaviour, that can arise when an estate needs to be wound up can be reduced or avoided by drawing up a valid will. Having a valid will, therefore, is hugely beneficial so that, after one’s death, loved ones are looked after exactly as the individual would have wished. Intestate succession (dying without a will) does make provision for the distribution of assets in terms of nine rules based on family lineage, but this may not reflect the deceased’s last wishes.
How to write a will: Requirements for a valid will
In order for a will to be valid there are some legal requirements to be met. One of the most basic of these is that it must be made by a person who is over the age of sixteen who has the mental capacity to act.
The will must also be in writing, and the document must then be signed by the testator in the presence of two witnesses (signature should take place on each page if a will consists of multiple pages). A testator who is illiterate or physically unable to sign may make use of his or her fingerprint in place of a signature. Both witnesses to the will must be older than 14 years and must be present when the testator signs the document. Moreover, these witnesses may not be beneficiaries to, or executors of the will and are not required to know its content as they are only attesting to the signature.
It is important to stick to the formalities in drafting a will in order to avoid disputes and the possibility of the will being declared invalid.
The contents of a will
A testator has almost unlimited freedom when it comes to the terms that may be included in the will and how assets should be divided between beneficiaries, provided it is not illegal, immoral or in contravention of legislation.
The individual drawing up a will may leave any belongings, whether considered valuable or not, to his or her beneficiaries. However, a testator who has children who are either minors or dependent upon him or her for money is bound by common law to provide for them. If a trust is created for this purpose, the appointed trustees will administer the assets for the benefit of the minors until their coming of age or until a later age as determined in the testamentary trust. The courts have the power to alter a trust’s provisions or even terminate it in its entirety on application by an interested or affected party.
Finalising a will upon death
Although an exact timeframe cannot be guaranteed regarding finalising a will upon the death of the testator, it typically takes between six and thirteen months before the deceased estate is finalised and settlements paid out to beneficiaries. This is because there are a number of processes to be followed, for example, to determine the deceased’s creditors and what assets (e.g. investment accounts) form part of the estate.
During the process of winding up and determining the value of a deceased estate, there are various institutions from whom information is sourced, including insurance companies, banks, the South African Revenue Services (SARS), and the South African Police Services (SAPS).
Should any individual contest the validity of the will, an investigation will be conducted in order for the Master to make findings in line with the testator’s wishes as far as possible. In some cases there is disagreement amongst beneficiaries and this leads to a delay in the administration of the estate. Should the Master not be able to resolve any issues, the High Courts must be approached for relief.
To streamline this process as much as possible, it is recommended that loved ones involved in the process submit information related to the estate as soon as they are able.
Written by Wessel de Kock