Where there is a (correctly formulated) Will there is a way for the bereaved

I bet you are reading this on an electronic device. I bet you have done most of your functional reading online during the last few months. I wonder when last you held a pen for more than filling out a form or signing a document? Even filling out a form by hand seems the exception to the rule these days!

Where are you going with this?

These have been dark days. During the pandemic that shall not be named (but starts with a C and ends in 19) it has been difficult to escape the uncomfortable introspection related to your mortality on this earthly plane. More people are becoming aware of the necessity of dealing with your last wishes before, well, that fateful final day.

The law is old

It is governed by a very old piece of legislation – the Wills Act, 7 of 1953 – that was only slightly amended in 1996. These ancient legal prescriptions clash with our modern way of doing things. It is high time that technology is embraced. The challenges due to social distancing further complicate matters, especially for the frail, old or those with comorbidities. Those who are most often in need of a Will.

These are some of the complications:

  1. The law says that a will must be in writing – either handwritten or typed.
  1. It must be produced on something that can physically be signed.
  1. If you cannot write you can make a ‘mark’ but then you need to find a commissioner of oaths that will physically need to see you make the mark and certify it as ‘true’.
  1. You need two independent witnesses to – AGAIN – physically be present and who will sign the document in your presence. They may not have written any part of it in their handwriting and may also not stand to inherit anything.
  1. While the Electronic Communications and Transactions Act (ECTA), 25 of 2002, gives electronic signatures some legal force, it does not have any power over the Wills Act.
  1. Right now, ‘audio’ and ‘video’ Wills do not constitute ‘writing’ and are therefore not valid.

Exceptions? Do not play Russian roulette

Whereas Section 2(3) of the Wills Act (the ‘rescue provision’) allows the High Court to instruct the Master of the Court to accept a document, or an amended document, as a WilI in terms of the Administration of Estates Act, even if this document does not comply with the formalities described.

However! Do not complicate your and your loved ones’ lives, by relying on this. It will likely cause long delays, more people may want to contest amendments or question the state of mind of the person who hastily changed their Will, and cost money to cover all the legal fees.

The courts have, in the past, accepted some electronic documents that had been stored on the testator’s (the person whose Will it is) hard drive, but others had been turned down if there were questions about the deceased’s intent. This makes them unreliable.

Should we wait for the law to catch up?

No one can argue that it is NOT high time that the legislation around the administration of Wills is reviewed. That takes time and with the current restrictions and the impact this has on capacity… well.

Because the law is as complicated as it is antiquated, we at NFS believe that it is always best to surround yourself with a team of professionals from complementary fields. We are good at teamwork! We can put our clients in touch with other professionals who shares our values and commitments.

A Will checklist to take note of

In terms of South African Law, the requirements for a valid will are as follows:

  • The person making the will (testator) must be over the age of 16 years
  • The testator must be mentally capable of understanding the consequences of his/her actions at the time the Will is drafted
  • Each page of the Will, including the last page, must be signed by the Testator

The things that are not ‘wrong’ but can make life difficult

There are pitfalls that, whilst not necessarily invalidating, can have serious consequences. These can impact and prejudice your heirs:

  1. Two ways of doing things and a blend that serves only a few – you could leave your entire estate to a single heir or divide it equally between multiple heirs (referred to as residual heirs), OR you can give specific assets to individuals. You could even do both!

    The latter is where the potential danger lies though. Beneficiaries of bequests trump residual heirs. Let us say Jackson decided to leave his estate to his mother but bequeath the sum of 1 million Rand to his cousin. Unfortunately, at the time he passed away, his estate only consisted of a house (meant to go to his mother) and 10 thousand Rand. The upshot of this was that the executor was obligated to sell the house to enable Jackson’s estate to honour the bequest!
  1. Vague wording – as important as it is for your Financial Advisor to check your Will to see that it is, indeed, viable and the most tax-efficient way of dealing with things, you do need to consult an attorney to make sure that it is legally correct and that the wording does not leave anything open to misinterpretation and therefore provide the basis on which your Will can be contested.
  1. The fate of the younger heirs – one can only inherit once you are legally an adult (that means aged 18 in South Africa). If your heirs are younger than that and you do not set set up a Trust that indicates the age at which you want the inheritance to become available, their portion must be paid to the Guardians Fund. Setting up a Trust allows you to appoint trustees and stipulate what kind of powers they will have. If the inheritance is substantial, you may worry about your spirited youngsters and their love of partying like there is no tomorrow. By creating a Trust you can stipulate an older age at which their inheritance will be paid out to them, perhaps after reaching the age of 25 or completing their studies.
  1. Immovable property – who are you leaving your house to? Sometimes the house has been left to more than one person. Whilst permissible, it may cause problems later on, should one of the parties decide that they want to shed the load, travel light and become digital nomads. The other party may want to do the traditional raising of a family in their childhood home. Babies are expensive, so is converting an old school bus into a home on wheels. This will likely lead to (expensive) tears as they battle it out in court.
  1. Choose and track the movements of your witnesses carefully – by Law, your witnesses must be contactable. Make sure you know where they are and if they, themselves, are still breathing!
  1. Is that everything? – Sometimes people take great care in pairing people and things up but they do not think of any bits and pieces that may be left over! They fail to nominate residual heirs. In this case, whatever is left over will be processed as if you died intestate (the legal processes that will be followed to distribute your assets was if you did not have a Will). Aunty Sue and Uncle Pat that blatantly favoured your little brother may land up with a windfall you did not intend to leave for them.
  1. Till divorce do us part – Should you untie the matrimonial knot, you have a grace period of three months to lick your wounds. After that, you need to amend the old or draw up a new one. If you should die in those three months, the Will will be interpreted as if your ex-spouse died BEFORE you (logically, they are ‘dead’ to you through your divorce), and your estate would therefore go to the other people mentioned in your Will.

    HOWEVER, if you forget to amend or create a new one, it will be assumed by the courts that you really DO want your precious Persian carpet collection and the holiday house in Margate to go to your ex-spouse instead of your current partner.

Last words

Follow Nike’s instruction and Just Do It! Consult those who are in the know and have your best interests at heart. If that pandemic we shall not name has taught us one thing it is that life is unpredictable, and that forward-thinking is the only way to survive.

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