Why you must make a Will – now!

WillIt’s easy to procrastinate when it comes to making a will. None of us wants to dwell on our mortality, but of course the reality is that it’s a not a case of planning for “If I die”. We have to plan for “When I die”.

So no matter your age, if you haven’t yet got around to making your will, delay no longer. You owe it to yourself and to your loved ones to avoid dying “intestate” (without a valid will).

Why? The risks of having no will

Dying intestate means –

    1. You forfeit your control over how and by whom your deceased estate is wound up. Rather make your own choice of an executor – someone you can trust to wind up your estate with independence, competence and a minimum of delay.
    2. You forfeit the opportunity to nominate a suitable guardian for your minor children, and any money due to them could end up languishing in the Guardian’s Fund.
    3. You forfeit your control over how your worldly goods are distributed. If you die without a will, our law prescribes who inherits what. And that could cause untold hardship and distress – for example you could unwittingly leave your spouse trying to survive on only a “child’s share” of your estate.

Have a professional draw your will

It’s not just a matter of complying with legal formalities but also of ensuring that effect is given to your true wishes, as simply and clearly as possible. A professional can also advise on a myriad of other considerations – protection of minors, tax planning, liquidity, safe custody for your will etc. On the other hand a poorly drafted or executed will is a recipe for delay, dispute and legal costs. A bitter court case could ignite a family war, and will certainly be an expensive and distressing experience for your loved ones at the worst possible time for them.

A safety net – better than nothing, but…

There is one safety net – even if your will doesn’t comply with all the legal formalities, your heirs can still ask the High Court to validate it. So although only a signed original will is normally accepted as valid, in appropriate cases an unsigned will, or a copy of a will, can be validated by court order. Even where a will has been lost or destroyed altogether – and not even a copy is available – a Court may accept a “reconstructed” will provided it is “satisfied that the reconstruction is both accurate and complete”.

Two bitter family fights prove the point

Having that safety net is certainly preferable to dying intestate, but of course it’s very much second prize for your heir/s to have to spend time and energy and money on asking a court to rectify a poorly drawn or executed will, particularly when a family goes to war with itself as a result.

By way of illustration, a recent High Court case concerned a fight between a brother and sister over the validity of a document, purporting to be their mother’s will but (a) available only as a copy and (b) non-compliant with the legal formalities (it wasn’t signed on each page by the mother and witnesses). On the facts (including the evidence of a handwriting expert), the Court dismissed an allegation that the mother’s signature on the document had been forged, and authorised the Master of the High Court to accept the document as the mother’s will. All the family acrimony, delay and expense could have been avoided had the deceased executed a legally compliant will, and ensured its safe-keeping.

Another case, involving a dispute between a mother and daughter over who was to inherit the father’s estate, shows just how much weight a validly-executed will carries in practical terms. The father had left his entire estate to his daughter in a 1992 will which complied with all legal formalities. The mother however asked the Court to rather accept a reconstruction of another “will”, allegedly executed ten years later in 2002 and this time appointing the mother as sole heir. In the end the mother was unable to convince the Court to overturn the 1992 will – she inherits nothing.

Last but not least – diarise a regular review!

Once you’ve made your will, review it at least annually. Take particular account of life events like marriage, divorce, deaths, births, retirement etc. Take full advice again if you want to make any changes – they can only be made in a valid “codicil” (amendment or supplement to an existing will).

Ashersons Attorneys

Ashersons Attorneys

Industry news and noteworthy articles from a boutique corporate law firm in Cape Town, South Africa

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