Wills

Introduction
There are two ways in which people may inherit from a deceased estate: intestate succession and testate succession.

Intestate succession applies when the deceased has not executed a Will. In such cases, there is a specific progression automatically applied to determine who may inherit (e.g. any surviving spouse or spouses, surviving children, parents, etc.). If the deceased leaves no living heirs, either descendent or ascendant, the entire deceased estate goes to the State.

Testate succession applies when the deceased has executed a Will in accordance with all of the formalities of the Wills Act. It is recommended that you leave complete a Will, as this way you have freedom to decide exactly what shall happen to your estate upon your death, provided this is within certain limitations in terms of legislation, case law and the boni mores of society.

The effect of divorce on a Will
Section 2B of the Wills Act provides that if you should die within three months of your divorce, your estate it is treated as if your former spouse died before you, and will, accordingly, not have any claim again your estate.

If you get divorced and do not wish your former spouse to inherit in terms of your Will, you have a three-month grace period after the divorce to change your Will in order to exclude your ex-spouse, if you have not already done so. It is recommended that you change your Will once divorce proceedings start or are anticipated.

Note: If you should die before the divorce proceedings are concluded, your spouse will still have a claim against the deceased estate in terms of the matrimonial property regime of your marriage, regardless of whether they are a beneficiary in terms of your Will.

If, however, you do intend that your former spouse shall still inherit from you even after the divorce then you must execute a new Will immediately after the divorce, as they shall receive nothing should you die within three months from the date of divorce.

Considerations when executing a Will

1. The establishment of a testamentary trust for the preservation of the inheritance of any minor or major heirs until they reach a suitable age, which we usually recommend as 25 years.
2. Who shall become the guardians of any minor children, particularly if the other parent should die before you or at the same time as you.
3. Alternative executors, trustees, guardians and/or heirs or beneficiaries which you would prefer in the event of the original intended recipients being unwilling or unable to receive that benefit.
4. Whether you wish to be cremated or not.
5. Whether or not you wish to donate any of your organs.
6. Whether to include a right for a person to enjoy the use and/or advantages of any particular asset (i.e. a usufruct) whilst ownership of such asset vests in another person (e.g. being allowed to continue to reside in a house).
7. Whether to direct that any particular property must be sold by the executor and the proceeds given to the nominated heirs or beneficiaries.

What your attorney will need to draft your Will

1. Original identity document and/or copies of your identity document.
2. The details of the full names, identity numbers, contact details and addresses for any people, organizations, or charities etc. named in the Will so that they are properly identified and can be easily located upon your death.
3. The full details and proper descriptions of your current assets and liabilities, including where any such assets may be located, and the details of your creditors.

What to check before signing a Will

1. Make sure there is a clause, which should appear at the beginning of the document, revoking all other Wills previously done by you.
2. If you nominate any friends or family to be an executor or trustee in terms of your Will, it is recommended that there is a clause which states that they shall not be required to furnish the Master of the High Court with security for the proper performance of their duties.
3. Signature of the Will on the last page must be witnessed by two people, who must both be present at the same time that the Will is signed, and all other pages must be initialed in the bottom right hand corner by you and those witnesses at the same time.
4. The witnesses must be at least 16 years or older.
5. The witnesses cannot be anyone who receives any benefit at any time whatsoever from the Will, which includes being an executor, trustee or guardian.
6. The document should include the full names, identity numbers and contact details of the witnesses. This is to ensure that, in the event that there is a dispute regarding your Will, they can be located to assist in settling the dispute.
7. If you are going to keep the original Will, you must ensure that it is kept in a safe and secure place which would be free of hazards such as fire or flooding and advise your nominated executor where this may be found.