Does your testament contain your will?
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Death is inevitable – even although we choose not to think about it or simply postpone our entertainment of the subject matter.
Everyone will die eventually and one cannot rule from the grave. That it why it is so imperative to have a well drafted testament (or will) in place when something does happen to you. Unfortunately one does not always include in your testament that which you think is neccessary to give effect to your whishes. I have therefore compiled a short list of information against which you can check your content to make sure your will is executable.
Aspects to take into consideration when drafting a will:
1.One can only dispose of something which is yours. For example: people married in community of property only own an undivided half share in an asset which they can bequeath (bestow)- even if they have paid for the entire asset. Therefore, you cannot bequeath your entire house to your skelmpie when your wife is still owner of 50% of the house. Similarly, if your immovable property which you wish to bequeath is fully mortgaged, the person inheriting it will also inherit the financial obligations in respect of the bond repayments.
2. You may bequeath your assets to whoever you want. Don’t fret over people’s feelings that might be hurt as a result of your decision. It is impossible to confront someone when he is six feet under. But remember, if you were the breadwinner in a family structure, make sure to provide enough financial support to your dependents. That’s what noble people do.
3. You and a partner may both make your wills in one document. However, a person has the right to change his will. Be cautious of the fact that your partner may change her will at any time during her life, resulting in her parents inheriting all of her assets instead of your children, for example.
4.You may amend your will at any time, but the amendment has to comply with certain legislative requirements. Be sure to have the correct amount of witnesses and to sign the document as close as possible after the end of the content. Make provision for witnesses who are not excluded to sign as such.
5.Even although it is not a legislative requirement, make sure your testament is always dated in order to determine which document is the latest one. The latest will always contain a revocation clause so that the executor can submit it as the latest one.
6. If you own farmland and would like to bequeath it in undivided shares to more than one person, be sure to bequeath it to a Trust, the legatees then being appointed as the capital beneficiaries of the mortis causa trust, as the Subdivision on Agricultural Land Act prohibits the division of farmland without the consent of the Minister (which is virtually impossible to obtain).
7. If you want to bequeath an asset or donate money to, for example, your child, stipulate that the asset or income shall be excluded from any community of property; community of profit and loss or the application of the accrual system. This will ensure that your child becomes the sole owner of that asset or income. Therefore, Harry, who married Sally on the sole contention that she is the only child of a very wealthy and terminally ill business man, would not be able to walk away with 50% of Sally’s inheritance when divorcing her shortly after her father’s death, as her inheritance would not be subject to any claim that he might have had in terms of the Matrimonial Property Act.
8. If you and your partner die simultaneously or within 120 days of one another, the law regards it as a simultaneous death. Nominate in writing who you would like to appoint as guardians of your minor (people under 18 years of age) children. Be sure to exempt the nominated guardians from furnishing security to the Master of the High Court.
9. Take into account that circumstances may change – your daughter may have had 3 children instead of 1 child at the time of your death, so make provision for “grandchildren” instead of naming them indivdualy. You are also entitled to make donations to the “unborn children of Sally Winterfell”, which means that if the baby has been conceived before your death, but hasn’t been born yet, the baby will also be regarded as a “grandchild” and be entitled to inherit.
10. Lastly, be sure to make provision for the instance where a legatee (inheritor) predeceases you.
“I bequeath my entire estate to my wife, Emma Stark, failing her, the SPCA.”
If Emma had predeceased the testator (the person whose will it is), and he didn’t make provision for substitution, the testator’s children would inherit their mother’s portion in terms of the law on intestate succession. Because the testator made provision for the fact that his wife might not be able to inherit (either dead or chooses not to), her portion would go to the entity he nominated in her stead, namely the SPCA.
Further note that these are merely guidelines and one can insert many special conditions and requests. Legislation also dictates specific requirements in order to give effect to a testament. For example: it has to be signed at a specific place on the page and the witnesses have to comply with certain requirements. These are all formal requirements. If you are unsure whether your testament complies with all of these requirements, or have specific requests that you wish to include, feel free to contact me for the drafting or safe keeping of a testament according to your specific needs.