Nov 29, 2021

Where There’s A Will, There’s A Way

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Get help on drafting your Will for free this National Wills Week.

FILE PHOTO: The country has stressed on the drafting of the Will for anyone to ensure that all assets are distributed according;y. PICTURE: Angus Reid Institute

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JOHANNESBURG: The Law Society of South Africa is observing a significant date in the South African calendar this week. 

National Wills Week is an initiative to increase awareness of the importance of having a valid Will and affords ordinary South Africans access to the services of law firms who can help draft-free basic wills.

According to life.file, 70% of South Africans don’t have a will. Ayanda Gaqa, Executive: Governance and Assurance at Eskom Pension and Provident Fund (EPPF) says this is due to a variety of reasons including the lack of knowledge of the benefits of having a will or assuming that things will somehow be taken care of by their spouse should they die.

“Having a will assists in making sure that the assets of the deceased are distributed according to his/her wishes. It may also assist in locating assets that may not be known to the family or their loved ones ensuring that all the assets are distributed quicker,” he says.

“The pandemic has made this matter even more important especially given the fact that death statistics have gone up. The importance of making sure that individual’s affairs are in order is even more important in the unfortunate event of one’s death.”

Anyone 16 years or older and who is mentally sound may make a Will. The Will must be done in writing and signed by the person in the presence of two witnesses who are at least 14 years or older, who must also sign the Will as witnesses. “It is important to note that the witnesses must not be people who stand to benefit or inherit from the Will,” adds Gaqa.

A Will is one of the most important documents one should draft especially if minor children or financial dependents are involved. In doing so, it is advisable to consult professionals that specialise in drafting Wills.

“This will ensure that all the requirements of a valid will are met. Generally, law firms, some of the big banks and other professional practitioners assist in the drafting of Wills.  They can also advise on appropriate estate planning strategies and trusts for those with more complex assets and arrangements,” says Gaqa.

Regularly updating a will is also very important. “It is recommended that one reviews their Will at least once a year to make sure that their latest circumstances are catered for. All the assets of the deceased will be included in the estate.

However, pension or retirement fund benefits would be excluded in this instance as these are dealt with in line with the requirements of the Pension Funds Act by the retirement funds concerned,” he explains.

According to Norton Rose Fulbright,  these are some of the important points to note about signing a Will:

  • Date your will. If you write more than one will in your lifetime (and you should as your life circumstances change) and don’t date them and destroy older versions, it’s going to be challenging (and costly) for your beneficiaries to prove to a court which will is your actual last will.
  • The witnesses must be 14 years or older and must not be a beneficiary (or married to a beneficiary) or your executor, trustee or a guardian. If any of these people witnesses you signing your will they cannot benefit from your will or be appointed an executor, trustee or guardian. It is wise to put a note identifying the witnesses with your will in case there’s a dispute.
  • You must sign in the presence of both witnesses who must sign as witnesses in your presence and each other’s presence. Witnesses don’t need to know what’s in your Will. All they are doing, by signing as a witness, is confirming they witnessed you signing the document you called your Will.
  • The Will must be signed on each page (anywhere on the page) and at the end of the will. On the last page, sign immediately after the last provision of the Will. If you leave a gap between the last provision and the signatures, you will invalidate your Will.
  • If you cannot sign your Will, you can make a mark on it in the presence of a commissioner of oaths as well as the witnesses or you can direct another person to sign your Will for you, again in the presence of the commissioner and the witnesses. The commissioner needs to append a certificate to your will to validate these methods of you signing your Will.

This National Wills Week, there are several participating law firms available to help you put your Will in place. 

Getting your affairs in order is confronting, time-consuming and can be overwhelming for some. But worse, dying without your legal “ducks in a row” causes immense stress and financial constraints for the people you leave behind.

“Having your Will organised is more than being on top of your admin for “just in case”. It empowers your loved ones and help reduce stress, avoid disaster and look after them long after you’re gone,” ends Gaqa.

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