All you need to know about a will and final testament

A final will and testament is important and not only for wealthy people and characters in television series who are ready to cut each other’s throats to inherit a parent’s riches. Having a will just makes it easier for the people you leave behind when you die.

If you do not have a will in place, now is a good time to think about it as the Law Society of South Africa’s National Wills Week, running from 11 to 15 September is coming soon and you will have a chance to have a participating firm draft a basic will for you for free.

According to the Law Society, you ensure that your assets are disposed of in according to your wishes after your death if you make a will.

Alex Simeonides, CEO of Capital Legacy, says this is an understatement. As Capital Legacy not only drafts wills, but also winds up deceased estates, he has witnessed first-hand the devastation of family feuds and the chaos that arises when a loved one passes away without a will in place.

“Oh, the stories we could tell. Ex-wives. New wives. Excommunicated children. Stepchildren. Minor children. Business partners. Extended family members. Long lost lovers. Surprise children. Mistresses. Hidden wealth. No wealth. International assets. Hidden assets. Lost crypto passwords and the list goes on. With no will and no clear wishes, this leaves the door open for drama.”

Simeonides says he cannot stress the importance of having a will enough. He points to these important considerations if you do not have a will in place:

• You forfeit the opportunity to nominate preferred guardians for your children.
• Cherished assets and heirlooms could end up in the wrong hands.
• You lose control over who inherits your assets, leaving it all to be distributed according to South African legislation.
• Delayed estate settlements can worsen the already challenging grieving process for your family.
• Family feuds could erupt if there is no clarity about your wishes.
• Your partner could be left with nothing.

ALSO READ: A last will and testament is one of the best gifts you can leave behind for your family

Why it’s important to sign your will

It is not only important to have a will, but it is equally important to sign it and have it witnessed. If a last will and testament is signed incorrectly and without a signature in ink, it is invalid and will be treated as if you have died without a will.

“After drafting wills every day for the past 11 years and helping over 650 000 South Africans to get their wills in order, experience has taught us how important this is. The statistics of South Africans who die without a last will and testament is shockingly high at more than 70%.”

Leaving it for later never works

Simeonides says over the past decade his firm found that only a small percentage of clients sign their wills and have them correctly witnessed and they have to nudge the majority of clients to get it done.

“Although it is with good intentions, people procrastinate and do not get around to the critical part of signing their will and having it witnessed by two independent witnesses.

ALSO READ: Last will and testament: Don’t try to rule from the grave

When is a will valid in South Africa?

The requirements for a will to be valid in South Africa are:

• You must be over the age of sixteen.
• The will must be signed in ink (wet signature).
• The will must be signed by the testator/testatrix (this is you), on each page and at the end.
• The signing of the will must be witnessed by two competent independent witnesses, both present at the same time, who sign on each page and at the end of the will too.

Who can witness a will and final testament?

The characteristics of an independent witness are someone who is:

• Older than 14
• mentally capable of providing testimony in court, at the time of signing
• not specified in the will (for example as executor, trustee, heir, legatee or trustee)
• not the spouse of anyone who has been specified in the will.

Simeonides says whether you are a parent, breadwinner, homeowner or just generally want to ensure that your affairs are in order, it is important that you have a valid will drafted by a professional.

“With a valid will drafted by a professional, the chance that a claim is brought against your estate in court is minimalised. A valid will allows you to state your last wishes, who should inherit your assets and property, who you would like to act as executor for your estate and who you wish to nominate as guardian/s for your minor children.

“A valid will enables you to protect the interests of your loved ones and helps ensure that there are no unnecessary delays in settling your estate after your death.”