Why Every South African Needs a Valid Will

Death is an inevitability that most people prefer not to contemplate. Yet the failure to plan for one's death can have devastating consequences for the people left behind. In South Africa, the law provides a clear and well-established framework for the drafting and execution of wills, the administration of deceased estates, and the distribution of assets upon death. Despite this, surveys consistently indicate that a significant majority of South Africans die without a valid will, leaving their loved ones to navigate the complexities of intestate succession at an already difficult time.

The Importance of Having a Will

A will is a legal document in which a person (the testator) sets out their wishes regarding the distribution of their assets upon their death. A valid will provides certainty, reduces the potential for disputes among family members, and ensures that the testator's wishes are carried out. Without a valid will, the testator's estate is distributed in accordance with the rules of intestate succession, which may not reflect the testator's wishes and can result in outcomes that are unfair or inadequate.

The key benefits of having a valid will include:

• Control over asset distribution: A will allows the testator to determine who receives their assets and in what proportions. Without a will, the law determines the distribution of assets according to a fixed formula.

• Appointment of an executor: The testator can appoint a trusted person or institution to administer their estate. Without a will, the Master of the High Court appoints an executor, who may be a stranger to the family.

• Protection of minor children: A will enables the testator to nominate a guardian for their minor children and to establish testamentary trusts to manage the children's inheritances until they reach a specified age.

• Tax efficiency: Proper estate planning, including the strategic use of testamentary trusts and other mechanisms, can reduce the estate's liability for estate duty and other taxes.

• Prevention of disputes: A clearly drafted will reduces the potential for disputes among family members and other potential beneficiaries, which can be costly, protracted, and emotionally damaging.

Who May Make a Will?

Section 4 of the Wills Act 7 of 1953 provides that any person aged 16 years or older may make a will, provided that they are mentally capable of appreciating the nature and effect of their actions at the time the will is executed. The testator must understand what a will is, must know the nature and extent of their assets, and must be aware of the persons who may have a claim on their estate.

Mental capacity is assessed at the time the will is executed, not at any earlier or later date. A person who suffers from a mental illness or disability may still be capable of making a valid will during a lucid interval, provided that they meet the requirements of mental capacity at the time of execution (Harlow v Becker 1998 (4) SA 639 (D)).

Formal Requirements for a Valid Will

The Wills Act prescribes strict formal requirements for the execution of a valid will. These requirements are set out in s2(1)(a) of the Act and must be complied with in order for the will to be valid. Non-compliance with any of the formal requirements may render the will invalid, with the consequence that the testator's estate is distributed according to the rules of intestate succession.

The formal requirements are as follows:

Writing: The will must be in writing. There is no requirement that it be typed; a handwritten will is equally valid, provided that it complies with the other formal requirements.

Signature of the testator: The testator must sign the will at the end thereof, so that it appears that they intended to give effect to the will by their signature. If the will consists of more than one page, the testator must also sign every page other than the last page at the bottom thereof (s2(1)(a)(i) and (ii)).

Witnesses: The testator's signature must be made or acknowledged in the presence of two or more competent witnesses present at the same time. Each witness must then attest and sign the will in the presence of the testator and of each other (s2(1)(a)(iii) and (iv)). Witnesses must be aged 14 years or older and must be mentally competent. Importantly, a witness should not be a beneficiary under the will, as s4A of the Act provides that any benefit conferred by a will on a person who attested the will, or on the spouse of such a person, is void unless confirmed by the court.

Signature by a commissioner of oaths: If the testator is unable to sign their own name (for example, due to physical disability or illiteracy), the will may be signed by another person on the testator's behalf, provided that a commissioner of oaths certifies that they have satisfied themselves as to the identity of the testator and that the will has been signed in the presence of the commissioner (s2(1)(a)(v)).

Failure to comply with any of these requirements may be condoned by the court in terms of s2(3) of the Act, which was introduced by the Law of Succession Amendment Act 43 of 1992. Section 2(3) grants the court a discretion to declare a document or the amendment, revocation, or revival of a document to be a valid will, despite non-compliance with the prescribed formalities, if the court is satisfied that the testator intended the document to be their will. This provision provides a safety net, but reliance on it is uncertain and involves litigation, which is costly and time-consuming.

The Role of the Executor

The executor (or executrix) is the person appointed by the testator to administer the deceased estate. The executor's appointment must be confirmed by the Master of the High Court, who issues Letters of Executorship (Administration of Estates Act 66 of 1965, s18). The executor is a fiduciary and must act in the best interests of the estate and its beneficiaries.

The duties of the executor include:

• Reporting the death to the Master of the High Court within 14 days;
• Compiling an inventory of all the assets and liabilities of the estate;
• Publishing a notice to creditors in the Government Gazette and a local newspaper, calling upon creditors to lodge their claims within 30 days (s29);
• Preparing a liquidation and distribution account, which sets out how the assets of the estate are to be realised and distributed;
• Lying the liquidation and distribution account open for inspection for a period of 21 days at the office of the Master and at the magistrate's court having jurisdiction (s35);
• Paying the debts of the estate, including any estate duty payable to SARS;
• Distributing the remaining assets to the beneficiaries in accordance with the will or, in the absence of a will, in accordance with the rules of intestate succession; and
• Filing a final account with the Master.

The testator should give careful consideration to the choice of executor, as the administration of a deceased estate is a complex and time-consuming process. It is advisable to appoint a person with the requisite knowledge, experience, and integrity, such as an attorney, accountant, or trust company.

Intestate Succession: What Happens Without a Will

If a person dies without a valid will, their estate is distributed in accordance with the Intestate Succession Act 81 of 1987. The rules of intestate succession prescribe a fixed order of distribution based on the relationship between the deceased and their surviving relatives.

The basic rules are as follows:

If the deceased is survived by a spouse but no descendants: The surviving spouse inherits the entire estate (s1(1)(a)).

If the deceased is survived by a spouse and descendants: The surviving spouse inherits a child's share or R250,000 (whichever is greater), and the balance is divided equally among the descendants (s1(1)(c)).

If the deceased is survived by descendants but no spouse: The descendants inherit the entire estate in equal shares (s1(1)(b)).

If the deceased is survived by neither a spouse nor descendants: The estate is inherited by the deceased's parents, failing which by the deceased's siblings, and so on in a prescribed order of consanguinity (s1(1)(d) to (f)).

The rules of intestate succession do not provide for unmarried partners, close friends, or charitable organisations. If the deceased wished to benefit any of these persons or entities, a valid will is essential.

The Guardian's Fund

Where a minor child (under the age of 18) inherits from a deceased estate, and no testamentary trust has been established to manage the inheritance, the inheritance is paid into the Guardian's Fund, which is administered by the Master of the High Court. The funds are held in trust until the child reaches the age of 18, at which point they are paid out to the child.

While the Guardian's Fund provides a measure of protection for the inheritances of minor children, it is generally considered a less favourable option than a properly structured testamentary trust. The Guardian's Fund offers limited investment returns, and the administration of the fund is subject to the constraints and inefficiencies of a government institution. A testamentary trust, established in the testator's will, allows the testator to appoint trusted persons as trustees, to specify the purposes for which the trust funds may be used (such as education, maintenance, and medical expenses), and to determine the age at which the capital is to be distributed to the beneficiary.

Estate Duty and Tax Considerations

The Estate Duty Act 45 of 1955 imposes a duty (tax) on the estate of every person who dies. Estate duty is levied at a rate of 20% on the first R30 million of the dutiable estate, and 25% on the amount exceeding R30 million. However, significant deductions and exemptions are available, including:

• A primary abatement of R3,500,000 (s4A(1));
• Bequests to a surviving spouse (s4(q));
• Bequests to approved public benefit organisations (s4(h)); and
• Certain liabilities and administration costs of the estate.

Proper estate planning can significantly reduce the estate's liability for estate duty. This may involve the strategic use of testamentary trusts, inter vivos trusts, life insurance policies, and other mechanisms. The testator should consult with a qualified professional, such as an attorney or financial planner, to develop an estate plan that minimises the tax burden on the estate while ensuring that the testator's wishes are fulfilled.

The Maintenance of Surviving Spouses Act

The Maintenance of Surviving Spouses Act 27 of 1990 provides that a surviving spouse has a claim for maintenance against the deceased estate, regardless of the terms of the will or the rules of intestate succession. This claim is a first charge against the estate and takes priority over the claims of other beneficiaries.

The Act defines "maintenance" broadly to include the provision of food, clothing, accommodation, medical attention, and education, having regard to the standard of living of the surviving spouse during the subsistence of the marriage (s2(1)). The purpose of the Act is to ensure that a surviving spouse is not left destitute as a result of the death of the other spouse, particularly where the deceased has left the bulk of the estate to other beneficiaries.

Common Mistakes That Invalidate Wills

There are several common mistakes that can render a will invalid or lead to unintended consequences:

• Failure to sign every page: The testator must sign every page of the will, not just the last page. Failure to do so may invalidate the will or specific provisions thereof.

• Inappropriate witnesses: Beneficiaries or their spouses should not act as witnesses, as any benefit conferred on them by the will may be voided.

• Ambiguous language: Vague or ambiguous provisions in a will can lead to disputes and litigation. The will should be drafted in clear, unambiguous language by a qualified professional.

• Failure to update: A will should be reviewed and updated regularly, particularly after significant life events such as marriage, divorce, the birth of children, or the acquisition or disposal of significant assets.

• Conditional bequests: Bequests that are subject to conditions that are impossible, illegal, or contrary to public policy may be declared void by the court.

Conclusion

The importance of having a valid, properly drafted will cannot be overstated. A will provides certainty, protects your loved ones, and ensures that your wishes are carried out after your death. At Ramirez Attorneys, we provide expert advice and assistance with the drafting of wills and testaments, estate planning, and the administration of deceased estates. We encourage every South African to take this important step to secure the future of their family.