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The only way to ensure that your post-death wishes are given effect to and that people you deem unworthy do not inherit from your estate is to draw a valid Will before your demise. If you do not have a valid Last Will & Testament, your nett estate will be distributed in terms of the Intestate Succession Act 81 of 1987.
This may result, for instance, in your estranged wife inheriting from your estate or a child with whom you no longer had an amicable relationship or undesirable family members (in the case where you are not survived by a child or a sibling) inheriting from your Estate, contrary to your wishes.
In South African Law relating to Wills, there is a common law principle of “freedom of testation”. This principle grants you (the testator) the power to effectively dictate how you wish your estate to be distributed and be dealt with after your death. However, there are limitations to this principle;-
- The provisions must be lawful;
- The provisions must not be against good morals/public policy;
- The provisions must be possible to perform (practical);
- The provisions must not be too vague;
- The provisions are subject to the common law claim for maintenance of your minor children;
- The provisions are also subject to the Maintenance of Surviving Spouses Act in terms whereof your surviving spouse may have a claim against your estate upon your death, irrespective of the provisions of your Will.
When drafting a will care must be taken to ensure that it complies with section 2(1)(a) of the Wills Act 7 of 1953 contains the requirements for the drafting and execution of a valid Will. It is important that these formalities/legal requirements are met otherwise your entire Will may be invalid. Although the High Court has the power to condone an otherwise invalid Will, this is a costly and time-consuming exercise (formal application has to be made to court and an order granted to condone the invalid Will) it is advisable that you ensure that the Wills Act requirements are fully adhered to. Here are some the basic requirements for you to execute a valid Will in terms of the Act:-
- You must be older than 16 years of age.
- You must be mentally capable of understanding the consequences of your actions at the time that the will is drafted.
- The Will must either be handwritten or typed.
- You must sign at the bottom of each page of the Will and at the end of the Will.
- Your signature on the last page must be signed in the presence of two competent witnesses who must both be present at the same time. A competent witness is anyone over the age of 14 and is of sound mind and capable of understanding the consequences of his or her actions and can testify in court.
- While the validity of your Will will not be affected, a beneficiary of the Will should not sign your will as a witness as they may be disqualified from inheriting.
Please always seek professional legal advice when having your Will executed. This article is only for guidance and information purposes and is general in nature and may not have dealt with your specific circumstances.