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Thread: Wills

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    Wills

    One has to look at the end of the legal process to appreciate the necessity of a properly drafted will, and to realise that this is vital. It is also accepted that wills are form part of the law of contract.

    A will gives effect to a person’s wishes (testator or testatrix). To appreciate the importance of a will, a look at the Administration of Estates Act 66 of 1965 is needed. The will is carried out in terms of the Administration of Estates Act 66 of 1965. Once an estate reaches this stage either there’s a valid will that’s available, or certain things have not been done properly or not even done at all.

    The will should exempt the executor from providing security. If not, the Master of the High Court may require lodgement of security to the full value of the estate for the proper performance of his/her tasks, duties or functions, unless he/she is a parent, child or the surviving spouse of the testator or has been assumed by the parent, child or the spouse.

    If the testator/testarix has minor children, specific clauses need to be part of the will, for instance the testator/testatrix will nominate of a guardian and for their inheritances to be held in trust by either the guardian or by trustees pending their attainment of majority. Ideally trustees and guardians have different roles so should be different people. The trustee administers the trust, and the guardian takes care of the best interest of the beneficiary, by among other things placing money and assets in trust.

    The requirements of a valid will in South Africa are:

    The testator/testatrix must be over the age of sixteen, the Will must be in writing. After the will is drafted the signing aspect of the will is a very important requirement for a valid will. All pages of the will including the last page must be signed by testator or testatrix in the presence of two competent witnesses with all parties being present at all times during the signature phase.

    Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness

    Estate planning and the drafting of a will are often neglected areas, and yet are very important areas. Estates can either be testate or intestate. So, a will is simply a written document, that expresses the wishes of the testator or the testatrix, nominates an executor who is then compelled to administer the deceased estate in terms of the Administration of Estates Act 66 of 1965, after the fact of a person passing away.
    The executor should be notified as soon as possible of the individual’s death, so that he/she can carry out this person’s wishes as soon as possible and administer the estate.

    Section 7 of the Administration of Estates Act 66 of 1965 provides:
    The testator/testatrix must within fourteen days after the death provide a death notice to the master, along with the will, and a few forms that need to be completed

    There’s many different types of wills purely to the many individual situations that exists.

    The following are common examples:

    1) Mutual will by husband and wife married in community of property; provision for the massing of both estates only with regards to a specific asset; massed estate to the major children subject to usufruct in favour of survivor; provision for event of both testators dying at or about the same time;

    2) Will of testator married out of community of property; no children; bequeathing estate to wife; provision for her predeceasing him and bequeathing
    estate to substitute beneficiary;

    3) Mutual will of husband and wife married out of community of property with major children; no massing; survivor nominated as executor and sole heir; provision for event of both testators dying at or about the same time; provision for minor grandchildren if applicable;

    4) Mutual will of husband and wife married out of community of property; no massing; survivor nominated as executor and sole heir; children all still minors; trust created in event of both testators dying at or about the same time; testamentary trust of testator married out of community of property giving whole estate to trustees upon trust; income to wife for life; capital to children or remoter issue; provision for maintenance and advancement; powers of executors and trustees;

    5)Testamentary trust of testator married out of community of property giving whole estate to trustees upon trust; income to wife for life; capital to children or remoter issue; provision for maintenance and advancement; powers of executors and trustees;

    6) Will of testator married out of community of property bequeathing a legacy with direct substitution; residue to trustee in trust for children; trustee’s powers; income to wife until death or remarriage; capital to children or grandchildren; provision for insolvency of any beneficiary; Will of bachelor leaving whole estate to trustee in trust to establish education bursaries out of the income thereof;

    7)Will of widower leaving whole estate to trustee in trust to invest, reinvest, sell or lease and to pay half the income to one son or his children and portion of remaining half to an institution caring for disabled son; provision for payment of capital upon death of disabled son;

    8)Mutual will by husband and wife married out of community of property with major children; legacy; provision for the massing of residue of both estates; survivor to be sole heir or heiress of massed estate subject to fideicommissum; remainder to be divided equally among children who are alive at death of survivor; provision for event of both testators dying at or about the same time;

    9)Will of widow appointing an attorney as executor and providing that, in addition to executor’s fees, attorney will be entitled to usual fees for legal work done in connection with the estate; immovable property to one son and residue to other son;

    10)Will of a testator married out of community of property bequeathing immovable property with provision for substitution; residue to trustee upon trust; income to wife until death or remarriage; thereafter income to son until death; thereafter capital to grandchildren; trustee’s powers;

    11)Will of widower giving legacies to grandchildren; residue to children or their descendants per stirpes;

    12)Will of testator married out of community of property appointing wife as the executrix and trustee with provision for alternative executor and trustee; limited powers of investment; income to wife for life; thereafter capital to children;

    13)Will of a farmer married out of community of property providing for the carrying on of his farming business by his wife for her benefit;

    14) Will of a trader married out of community of property carrying on business; bequest of business to wife and children in different proportions; wife to carry on the business if she so desires but, if not, business to be sold; income from residue to wife for life or until remarriage; thereafter residue to children in equal shares with right of accrual;

    15)Will of a trader married out of community of property carrying on a business in partnership; capital to remain in business as a loan subject to payment of interest; capital to be repaid by agreement; sons appointed as heir’s subject to income to wife during her lifetime;
    Will of a testator married out of community of property leaving a widow with considerable private means; bequest of whole estate to children in equal shares; provision for children of deceased child and for the maintenance of minor children; appointment of wife as executrix and trustee with extremely limited powers of investment; provision for alternative executor and trustee if wife fails to survive testator;

    There are situations of couples in relationships who cohabit without having being married. It also essential that these individuals have wills

    In situations where couples are in relationships and cohabit without being married to each other, it is essential that they have wills if they wish to benefit each other in the case of one of them dying. Should one of them die intestate, the surviving partner currently, in our law, will have no claim against the deceased estate and could perhaps be left destitute; (The maintenance of the surviving spouse’s act does not apply in these circumstances)
    Last edited by Vanash Naick; 25-May-19 at 09:07 AM.
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