So you have a will, but is it valid? LAW CORNER

2016-07-06 06:00

CERTAIN statistics in South Africa indicate that approximately 86% of South Africans have not planned for their death.

It appears that the act of drafting a will instills a sense of apprehension in an individual.

Substantial parts of our population have the perception that their entire estate will vest in the state if they do not leave a will. This perception in itself should be a strong justification for having a will, however, this perception is incorrect. The estate of a person, who dies without leaving a valid will, will not vest in the state, but is distributed in terms of the Intestate Succession Act 81 of 1987.

The main concern when distributing an estate in terms of this Act is that your assets do not necessarily devolve upon the individuals or in a manner which you would have preferred. Furthermore you may have, during your lifetime, promised or suggested to individuals that they will inherit a specific item or portion of your estate, but as a result of there being no will, that item would vest in another individual. This can cause animosity between family members.

A will ensures that your personal belongings are dealt with according to your preference after your death, and ensures that the interests and well-being of your loved ones after death are provided for. A will can also minimise conflict between family members.

It is important to ensure that a will complies with the formalities prescribed in the Wills Act, failing which the master has no discretion to declare the will valid. If you would like to know if your will complies with the required formalities, email this writer who will advise you accordingly. The only recourse the deceased’s heirs have in such a circumstance is to apply to court to have the will of the deceased person validated.

Our South African courts place a considerable amount of weight on a person’s right to freedom of testation and would only declare a will invalid in circumstances where there are inherent irregularities in the document or if the testator was mentally incapable when the will was signed. In such instances the court would require concrete evidence from a party contesting the will.

Even in circumstances where you have a valid will, it is prudent to review your will regularly to ensure you keep up with any changes in your personal circumstances such as death of a beneficiary or birth of a child or grandchild or in the case of divorce.

Furthermore, the composition of the assets in your estate or the circumstances of your heirs may have changed resulting in you wishing to make provision for certain heirs to receive specific assets or to receive a larger or smaller portion of your estate than you had initially planned.

You may also want to take care of the interests of certain vulnerable individuals by forming Trusts to ensure that other beneficiaries do not abuse a vulnerable person’s share of your estate.

For the brief reasons stated above, it is vital to ensure that one’s affairs are in order to avoid difficulty to heirs and executors when they are dealing with your estate.

• This article is for general information purposes only and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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