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Properly executing a will is extremely important

Properly executing a will is extremely important

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I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will.  Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office.

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can I amend my will?

Can I amend my will?

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Having a will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and what to add him/her into your will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a codicil?

When you want to add something to your will or make a minor change, then you can make use of a codicil. A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading. When amending a will, the same witnesses who signed the original will need not sign it.

Must I amend my will after divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.

This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.

Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The basics of creating a Last Will & Testament

The basics of creating a Last Will & Testament

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Who your property is passed on to depends on whether you have a valid will or not. If you do have a valid will, then your property will be divided according to your wishes stated therein. If you die without a will (called “intestate”), then your property will be divided amongst your immediate family according to the laws of intestate succession.

How can I create a Will?

If you are older than 16, you have the right to create a will, to state who you would want your property to go to when you die. In order for your will to be valid, it needs to be compiled in the proper way. According to the law, you have to be mentally competent when you compile your will; this means that you must understand the consequences of creating a will and that you must also be in a reasonable state of mind when you do so.

You must make sure that your will is in writing in order for it to be valid.

Two people older than 14 years must witness the creating of your will (preferably theses witnesses should not be beneficiaries of the will).

You have to initialise every page of the will and then sign the last page. The witnesses must also initialise and sign the will.

You can, and should, approach an Attorney (Jan L Jordaan Inc) to help you draw up your will to avoid creating an invalid will.

You can appoint an executor in your will to divide your property amongst your loved ones. An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will, and he/she will also settle your outstanding debts. If you don’t choose an executor yourself, then the Master of the High court will appoint someone, which is usually a family member.

What are the risks of not having a Will?

If you don’t have a valid will when you die, your property will be divided according to the rules set out by the Intestate Act. In simple terms these rules state that a married person’s property will be divided equally amongst their spouse and children. If you don’t have a spouse or any children, then your property will be divided between other family members.

The beneficiaries of your estate will be determined according to the laws of intestate succession, if you die without a will. This law determines the distribution of your assets to your closest blood relatives, meaning that your assets may be sold or split up against your wishes. Some of your assets could be given to someone in your family that you did not intent to benefit from your estate.

Without a will, you cannot leave a specific item to a specific family member or friend.If you live with someone but are not married to them, the law will not necessarily recognise him/her as a beneficiary of your estate, unless you have left a will naming them as a beneficiary.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Free Will and testament

Free Will and testament

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IN CONJUNCTION WITH THE INITIATIVE OF THE LAW SOCIETY OF SOUTH AFRICA WE OFFER OUR CLIENTS THE OPPORTUNITY TO HAVE THEIR WILL DRAWN UP BY JAN L JORDAAN INC AT NO CHARGE.

As from 1 September until 30 September 2017 we will be offering our services to the public wherein we will be drawing up a WILL AT NO CHARGE.

This initiative is in line with the National Wills Week presented by the Law Society of South Africa.

The aim of the Campaign will be to encourage members of the public to consult with an Attorney to draft a Will, and to receive guidance of the advantages and the necessity of having a will.

Please call Sharon to set up an appointment with one of our Attorneys.

CALL US ON +27 11 748 4500 OR CLICK HERE TO BOOK YOUR APPOINTMENT WITH US TODAY

Owning property without a Will

Owning property without a Will

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If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

  1. State where your title deeds are kept and record any outstanding bonds and all insurance
    .
  2. File up-to-date rates and taxes receipts
    .
  3. Record details of the leases on any property you have
    .
  4. State who collects your rent
    .
  5. State who compiles your yearly accounts
    .
  6. State where your water, lights and refuse deposit receipts are kept
    .

If you die without a will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

  1. Only spouse survives: Entire estate goes to spouse.
    .
  2. Only descendants survive: Estate is divided between descendants.
    .
  3. Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
    .
  4. Both parents survive: Total share is divided equally between both parents.
    .
  5. One parent: Total Estate goes to the parent.
    .
  6. One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
    .
  7. No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
    .
  8. No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.
    .

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The living Will

The living Will

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Most people are familiar with a will or testament and understand the importance of having this legal declaration drafted, by which the testator nominates an executor to manage his or her estate and provide for the distribution of his or her property to beneficiaries when he or she dies.

But how many people have considered drafting a living will?

A living will does not deal with assets, heirs and beneficiaries, but with the philosophy of death and dying, and should be considered carefully and drafted by a professional.

A living will is a legal document expressing a person’s wishes regarding life-prolonging medical treatment when that person can no longer voice his or her wishes. It is also referred to as an advance medical directive.

A typical clause in a living will would read as follows:

If the time comes when I can no longer take part in decisions for my own future, let this declaration stand as my directive.

If I suffer from physical illness or impairment expected to cause me severe distress, rendering me incapable of rational existence, from which there is no reasonable prospect of recovery, I withhold my consent to be kept alive by artificial means and do not give my consent to any form of tube-feeding when I am dying; and I request that I receive whatever quantity of drugs and intravenous fluids as may be required to keep me comfortable and free from pain even if the moment of death is hastened. I withhold my consent to any attempt at resuscitation, should my heart and breathing stop and my prognosis is hopeless.

The living will tells the doctor and family that the patient does not consent to being kept alive artificially. It speaks for the patient at a time when the patient may be unable to communicate.

South African law and most religions accepts the validity of the living will, but none of the main religions accept euthanasia.

Euthanasia is against the law. Sean Davison, the respected UWC professor who helped his 85-year-old terminally ill mother, Patricia Ferguson, die in New Zealand by preparing a lethal dose of morphine, was arrested in New Zealand in September 2010 on an attempted murder charge.

It is important to have a properly drafted, legal living will to avoid far reaching and traumatic consequences for the loved ones that stay behind.

Many lawyers who practice in the area of estate planning include a living will and a health care power of attorney in their package of estate planning documents.

The advantages of a living will

  1. The directives respect the patient’s human rights, and in particular his or her right to reject medical treatment.
  1. It encourages full discussion about end-of-life decisions.
  1. It also means that the medical staff and caregivers are aware of the patient’s wishes, and knowing what the patient wants means that doctors are more likely to give appropriate treatment.
  1. It will avoid the situation where the patient’s family and friends have to take the difficult decisions.

 

Disadvantages of a living will

  1. Drafting this document can be very depressing.
  1. The person may still be healthy and not in a position to actually imagine that he or she could ever be in the position where they would voluntarily give up living.
  1. When the time comes to act on the living will the patient might have changed his or her mind and it is then often difficult to amend the document.

 

Important points to consider

  1. The living will should not be incorporated or attached to the last will and testament, which is only acted upon after death.
  1. A living will does not become effective unless the patient becomes incapacitated; until then the patient will be able to choose appropriate treatment.
  1. A certificate by the patient’s doctor and another independent doctor certifying that the patient is either suffering from a terminal illness or permanently unconscious, is required before the living will becomes effective. In the case of a heart attack, the living will does not take effect. A living will is only executed when ultimate recovery is hopeless.
  1. You have to notify your doctor and family of your living will and preferably have copies of the document available for the doctor, hospital and family.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Should I draft a will?

Should I draft a will?

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A mother who has always wanted her daughter to inherit her diamond engagement ring may never get her wish granted if she dies without leaving a valid written will. The mother’s estate would then be distributed in terms of the Intestate Succession Act No. 81 of 1987.

Know where you want your possessions to go

Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible. Your will should reflect exactly how you want your assets to be dealt with after your death and should not be contra bonos mores (against good morals). It should also not amount to “ruling from the grave”.

What makes a valid will?

There are a number of legal requirements that have to be complied with for a will to be valid. If it does not comply with all of these requirements it could be found to be invalid. Your estate would then also be dealt with in terms of the Intestate Succession Act of 1987. It is therefore very importance that you obtain the assistance of a lawyer to help you raft a will.

A will should also regularly be revised and updated to adapt to your changing circumstances, for example after getting married, and when there is a child in the mix. Section 2B of the Wills Act No. 7 of 1953 (as amended by the Law of Succession Act No. 43 of 1992) deals specifically with a change in marital status by way of divorce, and reads as follows:

“If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”

An example

A and B get divorced and B dies within three months of the date of the divorce. B’s will was executed before they got divorced. Unless B’s will specifically indicated that A must benefit from B’s estate despite the divorce, B’s estate will then be distributed as if A died before they got divorced. A will therefore not inherit from B’s estate in this scenario. However, should B die more than 3 months after the divorce and B’s will, which benefits A, was not changed, then it will be seen as if B intended A to inherit, despite the divorce.

A person who was previously married and who remarries, should ensure that the necessary changes are made to his/her will. If not, this could have profound consequences for the “new” spouse, especially if the will still benefits the spouse from the previous marriage.

When there are minor children in the picture, it is advisable to make adequate provision for their living costs and education in your will. This can be done by creating a testamentary trust of which the minor children can be beneficiaries.

Conclusion

Thinking and talking about one’s passing is not a pleasant subject. Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate. It is certainly worth the time and effort to have a valid written will in place.

References:

Drafting of Wills 2013 – LEAD

Intestate Succession Act 81/1987

Wills Act 7/1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

National Wills Month

National Wills Month

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Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible.

Your will should reflect exactly how you want your assets to be dealt with after your death.

The National Wills Week (in Jan L Jordaan Inc’s case “Wills month”) is a joint initiative of the Law Society of South Africa and its six constituent members, the Black Lawyers Association, the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces and  the National Association of Democratic Lawyers. 

During September 2016 Jan L Jordaan Inc. will attend your will at no charge.

There are a number of legal requirements that have to be complied with for a will to be valid. If it does not comply with all of these requirements it could be found to be invalid. Your estate would then be dealt with in terms of the Intestate Succession Act of 1987. It is therefore of the utmost importance that you obtain the assistance of one of the Attorneys at Jan L Jordaan Inc. with the necessary specialised skill and knowledge to assist you with the drafting of your will.

Please contact our office on 011 748 4500 to set up an appointment with one of our Attorneys.

A will should also regularly be revised and updated to adapt to your changing circumstances.

Thinking and talking about one’s passing is not a pleasant subject.

Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate.

It is certainly worth the time and effort to have a valid written will in place.

Contact us now.

 

JAN L JORDAAN INC. IS PARTICIPATING IN NATIONAL WILLS WEEK, AN INITIATIVE OF THE LAW SOCIETY OF SOUTH AFRICA.

JAN L JORDAAN INC. IS PARTICIPATING IN NATIONAL WILLS WEEK, AN INITIATIVE OF THE LAW SOCIETY OF SOUTH AFRICA.

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Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible.

Your will should reflect exactly how you want your assets to be dealt with after your death.

There are a number of legal requirements that have to be complied with for a will to be valid.

Inter alia:

The Testator/trix (the person making the will) must be 16 years and older.

A witness must be 14 years and older.

The Testator/trix must sign the will in the presence of two or more witnesses that are present at the same time.

The Testator/trix has to sign every page of the will.

If the Testator/trix sign the will by making a mark, a commissioner of oaths has to certify that he has satisfied himself as to the identity of the testator/trix and that the will so signed is the will of the Testator/trix and each page of the will is also signed.

If the will does not comply with all of these requirements it could be found to be invalid and your estate would then be dealt with in terms of the Intestate Succession Act of 1987.

Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible.

It is therefore of the utmost importance that you obtain the assistance of one of the Attorneys at Jan L Jordaan Inc. with the necessary specialised skill and knowledge to assist you with the drafting of your will.

DURING SEPTEMBER 2016 JAN L JORDAAN INC. WILL ATTEND TO YOUR WILL AT NO CHARGE.

The National Wills Week (in Jan L Jordaan Inc.’s case “Wills month”) is a joint initiative of the Law Society of South Africa and its six constituent members, the Black Lawyers Association, the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces and  the National Association of Democratic Lawyers.

Please contact our office on 011 748 4500 to set up an appointment with one of our Attorneys.

Thinking and talking about one’s passing is not a pleasant subject.

Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate.

It is certainly worth the time and effort to have a valid written will in place.

A will should also regularly be revised and updated to adapt to your changing circumstances

Contact us now: Call us on +27 11 748 4500 or click here to book an appointment.

Should I draft a will?

Should I draft a will?

Comments 0 Comment

A mother who has always wanted her daughter to inherit her diamond engagement ring may never get her wish if she dies without leaving a valid written will. The mother’s estate would then be distributed in terms of the Intestate Succession Act No. 81 of 1987.

Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible. Your will should reflect exactly how you want your assets to be dealt with after your death and should not be contra bonos mores (against good morals). It should also not amount to “ruling from the grave”.

There are a number of legal requirements that have to be complied with for a will to be valid. If it does not comply with all of these requirements it could be found to be invalid. Your estate would then also be dealt with in terms of the Intestate Succession Act of 1987. It is therefore of the utmost importance that you obtain the assistance of someone with the necessary specialised skill and knowledge to assist you with the drafting of your will.

A will should also regularly be revised and updated to adapt to your changing circumstances, for example after getting married, and when there is a child on the way. Section 2B of the Wills Act No. 7 of 1953 (as amended by the Law of Succession Act No. 43 of 1992) deals specifically with a change in marital status by way of divorce, and reads as follows:

“If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”

This can be explained by way of the following example: A and B get divorced and B dies within three months of the date of the divorce. B’s will was executed before they got divorced. Unless B’s will specifically indicated that A must benefit from B’s estate despite the divorce, B’s estate will then be distributed as if A died before they got divorced. A will therefore not inherit from B’s estate in this scenario. However, should B die more than 3 months after the divorce and B’s will, which benefits A, was not changed, then it will be seen as if B intended A to inherit, despite the divorce.

A person who was previously married and who remarries, should ensure that the necessary changes are made to his/her will. If not, this could have profound consequences for the “new” spouse, especially if the will still benefits the spouse from the previous marriage.

When there are minor children in the picture, it is advisable to make adequate provision for their living costs and education in your will. This can be done by creating a testamentary trust of which the minor children can be beneficiaries.

Thinking and talking about one’s passing is not a pleasant subject. Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate. It is certainly worth the time and effort to have a valid written will in place.

References:

Drafting of Wills 2013 – LEAD

Intestate Succession Act 81/1987

Wills Act 7/1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)