Question: I have a will which my wife and I had jointly drawn up by a friend just after we were married. I think the will is still ok, but I am not sure. We have three children now and I’m worried what will happen to them should my wife and I pass away or even be divorced. Should I let someone have a look at my will?
Firstly, and most importantly, it is vitally important that you do have a valid will, as without a valid will, one leaves the decision as to what must happen to your estate and to your children in the hands of others.
To determine whether your current will is valid will depend on a number of factors including whether the will was validly executed in terms of our law. Our Wills Act 7 of 1953 establishes five basic requirements for a will to be valid, namely:
1. The will must be in writing, whether handwritten or typed or a computer printed document.
2. The testator must have signed the will at the end thereof.
3. The signature of the testator must be made in the presence of two or more competent witnesses. Witnesses are considered competent if they are 14 years or older and are competent to give evidence in a court of law.
4. The witnesses must attest and sign the will in the presence of the testator and each other.
5. Should the will be longer than a single page, each page other than the page on which it ends must be signed by the testator.
If your will does not meet these requirements, it may not be valid. If it does,it may be valid, but you may also have to question whether it is still relevant. A will should not be something that is concluded only once in your lifetime, particularly where there are changes in one’s status or position in life eg. marriage, divorce, children, inheritances, etc. It is always highly advisable to revisit your will and update it to your particular circumstances with the help of an estate planning specialist. For example, if you have been divorced and did not change your will, it could happen that your ex-spouse inherits your entire estate upon your death in accordance with the will you executed when you were still happily married! Our law only gives a period of three months following a divorce for you to amend your will during which time any bequest to your ex-spouse will be deemed revoked. Following this three month period, any bequest will go to your ex-spouse if you did not change your will.
Another aspect to consider is who has been nominated as the executor of your will, the guardian of your children or the trustees of a trust to be established on your death for the benefit of for example your spouse and children. Usually testators tend to nominate friends or family for these positions, not knowing that such a role may disqualify them from inheriting if they too witness the signing of the will. Often, when making a will before there are children, testators will also not address issues relating to the legal guardianship or care of the children in the unfortunate event of the death of the parents. This could be a grave oversight particularly where minor children are involved.
When it comes to a bequest to your minor children, you may think that just bequeathing your estate to your children is the right thing to do, not knowing that minor children are unable to inherit cash or property, and that should you pass away, their bequests will fall to and be administered by the Master of the High Court’s Guardians Fund. The guardian or person caring for the minor children can claim maintenance from the Guardian’s Fund by way of an application. Upon reaching the age of majority, or getting married or in terms of a Court application, the money in the Guardian’s Fund can be claimed by your children. But again, one may ask – is it not dangerous that a young adult come into possession of his or her inheritance and potentially squander such recklessly? By stipulating a different inheritance age in your will or even providing for a testamentary trust to administer your assets on behalf of your children, you may help ensure that they are looked after in the future.
To answer your question. Yes, it is highly advisable that you have an estate planning specialist review your will and help ensure that it is appropriate to your specific circumstances and creates the necessary planning to avoid legal entanglements for your loved ones in case of your death.
Source: VDT Attorneys