You and your partner may have gotten a will drawn up after you got married but now you have children and are not sure if it’s still okay. The South African Wills Act 7 of 1953 has 5 basic requirements for a will to be valid, here they are:
- The will must be in writing. This can be handwritten, typed or an electronic document which has been printed.
- The testator must have signed the will at the end thereof.
- The testator must sign in the presence of at least two competent witnesses. Witnesses are competent if they are 14 years or older and are competent to give evidence in a court of law
- All witnesses must attest and sign the will in the presence of each other and the testator.
- Should the will be longer than one page, each page other than the last page should be signed by the testator.
If your will does not meet the five basic requirements above, it is not valid. If it does, it will be valid but may not be relevant. You should always revise your will according to your current life circumstances with the help of an estate planning specialist. An example of an irrelevant will is one where your ex-spouse is listed as a beneficiary, the law only gives a period of 3 months after divorce for you to amend your will, during which time any bequest to your ex-spouse will be deemed revoked. Failing to amend your will during this period, any bequest will go to your ex-spouse if you did not change your will.
Something else which you should consider is the person who you nominate as the executor of your will, the guardian(s) of your children or any trustees of a trust established upon your death for the benefit of your loved ones. Usually testators choose to nominate friends and family for this position, not knowing that this can disqualify them from inheriting if they too witness the signing of the will. Often, while drafting a will before children are born, testators will not address issues relating to the legal guardianship or care of any children in the unfortunate event of the parents’ death. This can and usually will be a grave oversight, especially where minor children are involved.
When it comes to a bequest to your minor children, you may think that bequeathing your estate to your children is fine without knowing that minor children can not inherit cash or property, and that should you die, their bequests will fall to be administered by the Master of the High Court’s Guardians Fund. By way of application, the guardian or carer of your minor children may claim maintenance from the Master of the High Court’s Guardian Fund. Only upon reaching the age of maturity or by getting married, or in terms of a court application can the moeny in the Guardians Fund be claimed by your children.
Another concern is that your children may inherit your money and assets and use it recklessly. You can avoid this by stipulating an inheritance age in your will or providing a testamentary trust to administer your assets on behalf of your children., this will help to ensure that they are looked after in the future.
Now you know what to look out for when drawing up a will and how important it is to have a specialist draft your will to avoid potential problems. Contact us as soon as you’re ready to draw up/review your will and we will gladly help.