In South Africa, a surprising number of people do not have a last will and testament. For some, it’s a consideration they feel can be delayed or postponed due to life changes. Others may think it’s something only older people should worry about, or in some cases, perhaps believe it isn’t really necessary. Neglecting your last will and testament is not only unwise: it places your family at risk of unforeseen loss or financial hardship. This is why prudent life financial planning is so important.

Why it’s Important to Have a Last Will and Testament in South Africa

If you should pass away without a clear, up-to-date last will and testament in place, your assets and affairs automatically fall under the provisions of the Intestate Succession Act. This means that neither you nor your family have any control over the way your estate is distributed after your death – and the process incurs mandatory costs that can be avoided or reduced. A legally valid will ensures that your personal assets and possessions are distributed among the individuals you stipulate according to your wishes. Without one, you are deemed to have passed away intestate, and this means that your loved ones may not benefit as you’d like them to.

Having a Last Will and Testament Should be a Priority

In South Africa, an alarming percentage of people have not made proper provision for a last will and testament. In fact, according to the Master of the High Court, almost 3 in every 4 individuals in South Africa do not have a legally valid will. Why is this? The reasons range from misinformation to the belief that it is something that can be arranged later in life. The truth is, there are no guarantees, and many people pass away unexpectedly due to accidents, illnesses, or other factors that cannot be predicted. Of course, it is then too late. Procrastination – or even the failure to properly update a will – can create an added burden for a family already in mourning.

What Will Happen if You Don’t Have a Will?

South African law makes provision for an individual to choose how their estate plan will be executed after their passing. For this to take place, a legally valid last will and testament is essential. Without one, the prevailing legal system makes provision for effects and assets to be distributed among the deceased’s remaining relatives. Most commonly, this would include a spouse, children, and in some cases, surviving parents. In certain circumstances, members of extended family, like aunts, uncles, or cousins, my benefit if there are no closer relatives to consider. However, the key point here is that this is done arbitrarily, according to an appraisal of relationship degrees or necessity, and may not accord with your wishes at all.

The Many Disadvantages of Passing Away Intestate

The first and most obvious disadvantage of not having a legally valid will is that your possessions and assets may be handed over to someone who you would rather prefer not to receive them. Also, there may be items, sums of money, or other assets that you would like to pass down to a specific person – and there is now no guarantee that they would be entitled to them. There are other challenges and difficulties to consider, too:

• The selection of a suitable executor can be a lengthy process – and it may not be someone you’d rather have deal with your affairs.
• The associated fees and costs can rapidly escalate, depriving your family of finances that they could otherwise have benefited from.
• Without a legally valid will, you cannot set up a Trust to receive or preserve assets or cash on behalf of your minor heirs. Cash is automatically apportioned to the Guardian’s Fund.
• Without a will, you cannot stipulate a guardian for your minor children if both parents should pass away at the same time.
• Without a will, you also cannot distribute any offshore assets you may possess.

These factors all contribute to added emotional stress for your family at a vulnerable time, and often give rise to needless family disputes and disagreements.

Drafting a Legally Valid Will: Points to Consider

Prior to drafting your final will and testament, you should be aware of aspects such as guardianship of minors, and there are several factors to consider when choosing an executor to manage your estate. One option is to stipulate joint executorship – for example, your spouse and your family attorney together. A will should also be updated in the event of significant life changes, like a divorce. In such a case, if you have not done so within three months of a divorce, your former spouse can still inherit according to your existing will, even if this is against your wishes. Any individual over the age of 16, deemed mentally competent, can draft a will – but the Wills Act 7 of 1953 can be complex to navigate, and we strongly advise that you do so with the assistance of a suitably qualified attorney.

Some Specific Requirements for a Valid Last Will and Testament

For a will to be deemed legally valid, several criteria must be met:

• A will must be in writing. So, audio recordings or video recordings are not legally valid.
• Two witnesses, over the age of 14 years, must be present at the signing of a will.
• You may not use any beneficiary mentioned in the will as a witness.
• In the presence of the witnesses, each page of the will must be initialled, and the last page signed in full.
• The witnesses must likewise initial each page of the will, and sign in full on the last page.

Safekeeping and Accessibility

Once a will has been properly drafted, it should be kept in a safe but accessible place. This could be a home safe, or with a suitable storage provider such as a trust company. It should be readily accessible should you need to make changes or updates to your last will and testament. Finally, it’s also important to accompany the will with supporting documents – for example, policy documents, property registration and ownership documents, investments records, and anything else pertaining to assets described in your will.

Life Financial Planning, and More

Sound financial planning means provision for your loved ones in the event of the unexpected – and that includes a well-drafted and suitably updated last will and testament. In addition to sound financial planning, the Pogir Group also specialises in wealth management, short term insurance, medical aid schemes and healthcare solutions, and employee benefits. Our qualified consultants are available to guide you, should you require expert advice on drafting or updating your last will and testament. If you’d like more information, or to arrange a consultation, simply contact us and we’ll assist you, promptly and professionally. Pogir. Smart, with heart.