Deceased Estate Administration, Wills and Trusts

 

 

 

Unmarried partners are not automatically entitled to inherit. They must prove a reciprocal duty of support to claim any inheritance unless explicitly included in a will.

If you die without a valid will, your estate will be distributed according to the Intestate Succession Act. This means your surviving spouse, children, parents, or siblings will inherit based on a set formula.
 

An outdated will can lead to unintended consequences, such as an ex-spouse inheriting after a divorce if the will isn't updated. If the deceased dies more than three months after a divorce without revising their will, the ex-spouse may still inherit.

If both parents are deceased, a will can nominate a guardian for minor children. Without a will, the State determines guardianship, potentially placing children with unfamiliar or unsuitable individuals. Inheritance for minors is managed by the Guardians' Fund, unless a trust is specified in a will.

Without a will, the Master of the High Court appoints the executor, often based on nominations from the deceased's heirs. This may cause delays, additional costs, and family frustration.
 

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The Importance of creating a Will

Without a valid Will, your estate will be distributed according to South African law, which may not align with your wishes and can cause unnecessary complications and stress for your family. Avoid this uncertainty. Aucamp Attorneys provides expert legal services to create a Will that ensures your assets are distributed according to your plan, not chance.

In South Africa, a Will is a legal document that specifies how a person's assets are to be distributed after their death. It's also known as a testament.

Ensuring Your Will is Valid and Enforceable

For your Will to be legally recognized and effectively carry out your wishes in South Africa, it must adhere to specific formalities outlined in the Wills Act of 1953. Failing to meet these requirements can render your Will invalid, leading to unintended consequences and potential distress for your loved ones. At Aucamp Attorneys, we meticulously guide you through every step of Will drafting to guarantee its legal validity and enforceability, ensuring your estate is distributed according to your precise intentions.

Core Legal Requirements for a Valid Will in South Africa

The Wills Act sets out these essential formalities:

  • Must be in Writing A verbal declaration, no matter how clear, is not legally sufficient. Your Will must be documented in written form.
  • Signed by the Testator You, as the testator (the person making the Will), must sign it at the very end. If your Will is longer than one page, both you and your witnesses must sign every page to prevent later disputes or alterations.
  • Signature in Presence of Two Competent Witnesses Your signature must be made in the presence of at least two witnesses who are legally competent (generally, over 16 and of sound mind).
  • Witness Attestation and Signatures These witnesses must then also sign the Will, in your presence and in the presence of each other, attesting that they witnessed your signature. This simultaneous witnessing is crucial.
  • Special Provisions for Marks or Signing on Testator's Behalf  If you are unable to physically sign and use a mark (like an 'X') or instruct someone else to sign for you, a Commissioner of Oaths must be present. The Commissioner plays a vital role in certifying your identity and confirming that you understand and intend the document to be your Will.
  • Testator's Capacity You must be at least 16 years old and possess sound mental capacity at the time of signing your Will to ensure its validity.

Beyond the Basics - Best Practices for a Robust and Dispute-Proof Will – Advice

While adhering to the above core requirements is essential for basic validity, Aucamp Attorneys goes further to ensure your Will is robust, minimizes potential for disputes, and truly reflects your intentions. We advise taking special care with these aspects during Will drafting and signing:

  • Independent Witnesses are Crucial Your witnesses must be independent. Crucially, they should not be any of your nominated executors, beneficiaries, or the spouses of beneficiaries. Using interested parties as witnesses can create significant legal challenges and invalidate parts of your Will.
  • Handwritten Wills - Proceed with Caution If you choose to handwrite your Will, ensure it is entirely in your own handwriting. If this isn't possible (for example, due to physical limitations), strictly avoid having your nominated executor, beneficiaries, or their spouses write any part of it. Wills not written in the testator's own hand require stricter scrutiny.
  • Eliminate Blank Spaces Avoid large blank spaces (over 10cm) on your Will. If unavoidable, strike through any blank spaces, and initial the strike-through on each page to prevent unauthorized additions later. Ideally, work with Aucamp Attorneys to draft a Will that minimizes blank spaces from the outset.
  • Always Date Your Will Clearly date your Will. The most recent valid Will is considered your final testament and automatically revokes any previous Wills. Undated Wills can lead to confusion and legal battles, potentially reviving older, outdated versions.
  • Inheritance for Minor Beneficiaries Be aware that beneficiaries under 18 cannot directly inherit cash. To prevent minor beneficiaries' inheritances from being placed in the state-managed Guardian's Fund (which can be cumbersome to access), Aucamp Attorneys strongly recommends incorporating a Testamentary Trust into your Will. This allows appointed trustees to manage the inheritance responsibly until minors reach adulthood, as per your specified terms.

The Importance of the Original Will & Duplicate Originals

A critical, often overlooked aspect is the absolute necessity of the original Will. The Master of the High Court only accepts original Wills for estate administration. If the original Will is lost or misplaced, proving a copy is the true and valid Will requires a costly and time-consuming High Court order.

To mitigate this significant risk, Aucamp Attorneys advises clients to sign their Wills in duplicate. This creates two identical original Wills, significantly reducing the risk of losing the only original and safeguarding your estate plan.

Let Aucamp Attorneys Secure Your Legacy with a Valid, Enforceable Will

Navigating the legal requirements for a valid Will in South Africa can be complex and overwhelming. Don't leave such crucial matters to chance or DIY templates. Aucamp Attorneys provides expert legal guidance, meticulous drafting, and careful execution to ensure your Will is not only valid but also effectively reflects your wishes and protects your loved ones.

Contact Aucamp Attorneys today for a consultation to discuss your Will and estate planning needs. Secure your legacy and gain peace of mind knowing your affairs are in expert hands.