Personal Finance | A few requirements for a will to be valid in SA

PERSONAL FINANCE

A will allows you to provide for your family and removes complications after you pass away. “Through years of winding up deceased estates, we see all too often the reality of families struggling to deal with the loss of a loved one.

This struggle is infinitely more difficult when the loved one’s affairs are not in order,” says Alex Simeonides, CEO of wills administrator Capital Legacy, who adds that, with no will and no clear wishes, this leaves the door open for drama.

Simeonides adds that delayed estate settlements can worsen the already challenging grieving process for your family, and family feuds could erupt if there is no clarity about your wishes.

READ: Get a free will drafted during National Wills Week

Moremadi Mabule, head of sales for the beneficiary fund at Sanlam Trust, says there is a mistaken belief that wills are only necessary for people with lots of assets.

She said:

Everyone can exercise freedom of testation – decide who inherits what from their estate – as long as their wishes are ethical and legal. There are many free online will templates but if you have a family, especially minor children, it may be worth consulting with a wills consultant or financial adviser.

Different family structures to consider in a will

BLENDED FAMILY:

The divorce settlements: Some partners come from previous relationships that ended in divorce. It’s important to know what’s in the divorce settlement(s) and how that affects a new marriage.

• Marital regime: Are you married in or out of community of property? If out of community, did you include the accrual system in your ante-nuptial contract? Who owns which assets?
• Beneficiaries: Stepchildren do not stand to inherit unless you stipulate as much or adopt them as your children. You need to be explicit with your wording, so there’s no confusion. If your stepchildren are excluded from your estate inheritance, but they can prove they were financially dependent on you, they can claim from your pension fund.

ADOPTED CHILDREN:

• Adopted children have the same rights as biological children. Should you die without a will, they’ll be regarded as your children during the intestate process.

DIVORCE:

• If you have a joint will, or a will that nominates your ex-spouse to inherit, you have 90 days after your divorce to amend this. Otherwise, your ex-spouse still stands to inherit.

MARRIED:

• It’s best to still have separate wills to ensure each of your final wishes is carried out.
• Your marital regime plays a massive role. If you’re married out of community of property, with exclusion of accrual for example, you can exercise freedom of testation and leave everything to your children. However, your spouse can still claim from the estate in terms of the Intestate Succession Act and Maintenance of the Surviving Spouse Act.

UNMARRIED WITH A LIFE PARTNER:

• Strictly speaking, there’s no such thing as a “common-law spouse” in South Africa, although new legislation may soon be passed, enabling an unmarried life partner to claim from a partner’s estate, through the Intestate Succession Act and Maintenance of the Surviving Spouse Act, and recent court decisions have granted certain rights to life partners, which they did not previously enjoy. This can significantly delay the conclusion of an estate, so it’s much kinder and fairer to include a partner in your planning.
• According to the Sanlam survey, 18% of people were living with a partner and 10% had children with their unmarried partner. It’s important to plan together and make sure each partner is provided for. You can stipulate your partner as the main beneficiary or make your children your beneficiaries and plan for your partner elsewhere, through life cover, for example.

PROVIDING FOR PARENTS AND OTHER EXTENDED FAMILY MEMBERS:

• If you die without a will, your parents, siblings and other family members have no maintenance claim from your estate. However, if they can prove their financial dependence on you, they could claim from your pension.
• It’s best to stipulate whether you want to continue supporting family members (in addition to your children and spouse), through explicit wording in your will.

POLYGAMY AND POLYANDRY:

Providing for multiple partners is complex and should be rigorously planned for.

• If you die without a will, your estate will be divided between your partners (and your children), according to your marital regimes.
• If you draft a will, you can exercise freedom of testation over your share of the estate, however, the marital regime for each relationship will play a major role in how the estate is divided.
• The default regime is in community of property.

Sanlam Trust found that over 40% of the deceased estates it administers have insufficient cash to cover all debts, costs, cash bequests and taxes payable during one’s lifetime, and income tax, capital gains tax and estate duty upon death.

Wills administrator Capital Legacy, Sanlam Trust and insurer Discovery Life offer an estate planning service that provides clients with a fully advised will and an insurance policy that covers the costs of concluding the estate. The insurance premium is calculated based on your assets as stipulated in the will. Insurer Clientele also offers an Estate Preservation Plan.

• A person must be over the age of sixteen (16).
• The will must be signed in ink (wet signature).
• The will must be signed by the testator or testatrix on each page and at the end.
• The signing of the will should be witnessed by two competent independent witnesses, both present at the same time, who sign on each page and at the end of the will too.

Who can witness a will?

The characteristics of an independent witness are that he or she:

• Is fourteen (14) years or older.
• Is mentally capable of providing testimony in court, at the time of signing.
• Is not specified in the will (for example as executor, trustee, heir, legatee or trustee).
• Is not the spouse of anyone who has been specified in the will (the testator/testatrix, executor, trustee, heir, legatee, or beneficiary).

– Capital Legacy