10 facts about your Wills (including some that save time and money)
Your will is arguably the single most important legal document you could have in your “life.file” of legal life stuff. It’s a good idea to have a solid grasp on what a will is and what function it serves before signing yours. Here are some will facts you might not know...
FACT ONE
If you die without a will, the State gets to divvy up your worldly possessions
If you don’t have your will sorted out when you die, in South Africa, it’s described as dying “intestate”. If you kick the bucket intestate, it means that your assets will be shared amongst your closest relatives according to a set formula defined by the Intestate Succession Act, 1987 (Act 81 of 1987). If it’s not written in your will, it won’t happen.
FACT TWO
You don’t have to appoint a lawyer or a financial institution as your executor
There is absolutely no obligation to appoint a third party professional services firm as the executor. No matter how hard they try to twist your arm, this choice is yours and yours alone to make. The term “executor” is defined by the South African Administration of Estates Act as “the person who is authorised to act under letters of executorship granted or signed and sealed by the Master”. What this means is that your executor can be anyone over the age of 18 and with the mental competence to act in this capacity. There are practical reasons why you might choose an external professional or company to act in this role (they might be able to be more objective and make decisions faster), but this is not always the case.
FACT THREE
Life partners don’t automatically qualify to inherit your estate when you die - no matter how long you’ve been with them
If you’re in a long term partnership but haven’t got married or entered a civil union, you can’t be guaranteed that the State will recognise your partner as a beneficiary of your estate. Remember, if you die intestate (i.e. without a will), then the State dishes out your assets according to a set formula in which your relatives get your assets. The only way of making sure that your partner is guaranteed any part of your estate is to make sure that they’re mentioned in your will.
FACT FOUR
Digital signatures on wills aren’t acceptable
The South African Wills Act requires you to physically sign your will in pen. Pen - not pencil. Or highlighter. Or crayon. Or with a digital signature. One day this may change but for now, under South African law, it’s ink or nothing.
FACT FIVE
If you witness a will that you’re a beneficiary of, your inheritance will become invalid
A witness can’t inherit anything from the will that they’re signing. There’s nothing to physically stop someone from signing a will that they are a beneficiary of… however, any inheritance that the will provides for them will be invalid. Not ideal. The practical effect of this is that you would probably not want your spouse or child to be a witness to your will.
FACT SIX
Your signature should be as close to the end of your will as possible
Having a big gap between the last paragraph of your will and the signature section is risky business. Picture this: you have a slippery family member who stands to gain from your estate. They get hold of your will and see that there’s a big space between the last paragraph of your will and your signature. They make some “additions” of their own in the big white gap and bob’s-your-uncle, they’ve just committed fraud that they may well get away with.
FACT SEVEN
Having multiple copies of your will could delay the wrapping up of your estate one day
We wouldn’t recommend having more than two copies of your will at any given time. These would include your original will and a duplicate will. The Master’s office in South Africa will only accept your original signed will. There are a few reasons why you might want a duplicate will - like being fearful of your will burning down with the house or that your loved ones might not be able to find your will one day. Keep in mind that the person wrapping up your estate would need to lodge an application with the High Court to prove that the duplicate will they’ve got is, in fact, yours. This is a pricey exercise and will delay the wrapping up of your estate. Far from ideal.
FACT EIGHT
You don’t need to destroy your will and start again every time you make an update to it
You are allowed, and encouraged, to make changes to your old will to bring it up to date to reflect your current circumstances. But, you don’t need to destroy an old will and start again to incorporate your new wishes. If you want to make additions to your will, you would need to do so by following the correct procedures - like attaching a codicil to it. These updates would need to be done to any duplicate wills you’ve got as backup. It’s very important to keep in mind that if you’ve got more than one version of your will when you die one day, there could be delays in wrapping up your estate while the Master of the High Court tries to figure out which will is the one you’d hoped to die with. For this reason, if you’re going to change your will completely, we recommend physically destroying the previous will and any duplicate copies you might have for “just in case” and start fresh.
FACT NINE
The Master of the High Court is not a real person
The Master isn’t really a real life person that you can send a Facebook friend request to. It is better to think of the Master as an institution created by legislation and operating from court. Who your Master is will depend on where you were living when you died, but can also be where anyone with an interest in your estate (like an executor) resides, if they make a special request to the Master in that location.
FACT TEN
At least one or two people should know where your original will is and how to access it
It counts for very little if you’ve got a will but no one knows where it is. Make sure that your executor or spouse or a beneficiary knows where to find your will. Stranger things have happened than the only two people on the planet who know something both dying at the same time… make sure that at least a few trusted people know where your original will is. Above all else, you should know where your original will is. Over the span of your life, it’ll need updating.
