The importance of having a Will.
Do I really need a Will? Traditionally the answer to this question is an unequivocal yes!! Especially if you have children and a spouse you wish to provide for.
The general view is that it is essential for every person to have a Will, whether or not you decide on a Will depends if the consequences of not having a Will are acceptable to you, some of the consequences are:
- You will not be able to choose your beneficiaries.
- You will die intestate and your estate will be distributed in terms of the Intestate Succession Act 81 of 1987.
- You will not be able to choose an executor nor appoint a guardian or trustee should you have any minor children
There are several other factors which makes it desirable to have a valid Will.
The Wills Act 1 of 1953 regulates the validity of a Will and the specific requirements. Section 2 of the Wills Act are of importance in this regard and sets out the requirements of a valid Will, they are:
- A Will has to be reduced in writing
- Each page of the Will has to be signed at the bottom by the testator and two witnesses competent to adduce evidence in a court, all of which must sign in each other’s presence.
- In the event that a testator is unable to sign he must sign by way of mark, in the presence of two competent witnesses, in front of a commissioner of oaths whom must certify the Will.
It is important to note that in Kidwell v The Master it was held that a Will was invalid as the testator signed right at the bottom of the page, there was around 17cm between the testator’s signature and the end of the Will as well as the witness’s signatures. The court held that the Will did not comply with section 2 (1) of the Will’s Act and therefore it was rendered invalid. In practice our office’s has reviewed many Wills where unsuitable and or unqualified people and or institutions drafted Will’s for clients and such error was found to be very common in some of the Wills we reviewed.
Some of the benefits of having a Will are:
- If you have minor children, you can appoint a guardian to take care of them, in the absence of a Will the court will appoint a guardian either a family member or a state appointed guardian, thus it is vital that you make provision in your Will for a guardian.
- If you have minor children or any special needs beneficiaries you can provide for them by creating a trust in which assets can be held and administered to their benefit until they reach a certain age, for a specific period or until a certain occurrence.
- You can clearly state your preferences as well as whom will inherit what and thus avoiding any family disputes
- You can make donations, bequests or leave legacies to charity in order to minimize estate duty payable
- You will be able to appoint a guardian, trustee and executor of your choice.
Some of the duties of an executor includes collecting assets, paying creditors, distributing the estate in accordance with your Will and reporting to the Master. When faced with the decision of whom to appoint as an executor of your estate it is important to note that an executor is allowed to charge an maximum of 3.5% plus VAT of the gross value of your estate, this means 3.5% on the total of all assets before any deductions.
When most financial institutions and or attorneys receive instructions to draft a Will they eagerly appoint themselves as executors of an estate, some even agree to draft the Will for a lesser fee or do not charge any fee should you appoint them as your executor.
This means that such institution will be allowed to charge 3.5% of the gross value of the estate plus VAT. In our opinion it is unethical behavior unless the financial consequences are explained to the client which rarely happens. It is advisable that you consider appointing your spouse or a family member whom then in turn can appoint a suitably qualified person as agent in terms of Regulation 9 to administer the estate. They will then be able to negotiate a lesser percentage or a fixed fee ensuring that your beneficiaries have more cash in pocket.
It is of utmost importance that you choose a competent and suitably qualified person to draft your Will in order to ensure that your Will complies with the formalities as set out in the Wills Act, if your Will fails to meet these requirements your Will, will be render invalid and you will be regarded as having died intestate.
Our firm specializes in Wills and Estates, do not hesitate to contact us should you have any questions.