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LAST WILL & TESTAMENT: WHAT IS IT AND WHY YOU NEED ONE

A Last Will and Testament is a legal document that prescribes a person’s final wishes relating to possessions and dependents. It outlines what possessions you have and what should be done with them when you die. For dependents, a Last Will & Testament states who remains their legal guardian and how their affairs should be managed in your absence.

It is written while you are alive and its instructions are carried out by a person(s) nominated as the executor of your estate. That person is responsible for administering your estate and making sure your dependents are taken care of as you so wish.

A person is required to be competent and of sound mind when they draw up and sign a Last Will & Testament. Many Last Will & Testaments are disputed in a court of law and it’s an extremely unpleasant situation for all concerned.

Why a last will & testament is so important

A Last Will & Testament is the foundation of an estate plan. It’s extremely important because it avoids disputes and confrontations arising among your family once you have gone which may lead to unwanted claims on your estate and potential court battles.

Any asset that’s not designated to a specific beneficiary, passes directly to your primary beneficiary. This may be your wife, oldest child or parent. This includes insurance policies and assets such as your home, vehicle, jewelry etc.

A Last Will & Testament also protects an aging parent(s) who you are supporting. Your surviving spouse and/or dependents are legally bound to honour your wishes to use revenue from your estate or insurance policies to continue supporting them.

An addenda to your Last Will & Testament can be added giving power of attorney to a third-party or medical practitioner to handle matters if you become physically or mentally incapacitated.

What happens if you die without a Last Will & Testament?

Intestacy is the state of dying without a Last Will & Testament. A person who dies without a will is said to have died intestate. The estate of the person who has died intestate goes through a probate court.

A probate court is a specialised court that deals with the property and debts of a person who has died intestate. The basic role of a probate court judge is to ensure all creditors are paid, minors are placed with suitable guardians and any remaining assets are distributed to the proper beneficiaries.

If you do not draw up a Last Will & Testament before you die, your estate will be divided up among your intestate heirs based on the intestacy laws of the state where you were living at the time of your death.

The same applies if you and your spouse die at the same time, leaving behind minor child/children. They will become minors of the state and fall under the supervision of a probate court judge who’ll decide who gets custody of them and who will manage their inheritance until they reach the age of 18.

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Requirements of a Last Will & Testament

The basic requirements of a valid Last Will & Testament are set out in the Wills Act 7 of 1953, and apply to any testator who died on or after 1 October 1992.

For a Last Will & Testament to be valid, it must comply with the following regulations:

Must be in writing

This is not specified in the Wills Act 7 of 1953 but it has become the legal norm. Writing includes handwritten or typed documents. An oral Will is not accepted, nor is a video recording accepted.

Must be signed by the testator

The testator is the person who has made a Will or given a legacy. He/she must sign at the end of the document and each page must be signed in full or initialed, depending on your state’s laws. Failure to do so will lead to a Will being declared invalid.

Must be dated

It is important to date a Will because it makes it easier to determine which one is the Last Will, if more than one has been drawn up.

Must be witnessed

A testator must sign his/her Will in the presence of two or more competent witnesses, and both must be present at the same time. Both witnesses in turn sign at the end of the document, in the presence of each other and the testator. They do not sign each page if there is more than one page.

The Will Act determines that a witness must be over the age of 14 years at the time they witness the signing of a will, and must be deemed competent to give evidence in a court of law if necessary.

It is not the responsibility of a witness to read the document or even know what is in it. His/her function is limited to witnessing the signature of the testator.

It’s important that you choose a witness who is not a beneficiary of your estate. In particular, a spouse and/or your children cannot be a witness to the signing of your Will. At the same time, any witness chosen cannot be appointed as an executor.

Provisions to the Wills Act 7 of 1953

The Wills Act 7 of 1953 makes the following provisions:

  • A person can be directed to sign on behalf of someone who is incapable of physically signing a Will because of an impediment or infirmity.
  • A mark or finger imprint is accepted where a person is illiterate or infirm. A medical certificate must be affixed to the Will in those circumstances where a prudent application has been made to allow a mark or finger imprint.
  • Amendments may be made to a Will without having to draw up a new one. This would include deleting or adding wording or clarifying phrases. A testator must comply with strict formalities to ensure these amendments are valid and will stand up in a court of law.

What is the difference between a Will and a Testament?

A Will and a Testament used to be two different documents; a Will dealt only with real property (land), and a Testament deal with personal property (household goods, money, vehicles, jewelry etc.)

At the time, the law often forbade certain classes or groups from owning real property. For example, under English law, a woman was not legally allowed to own land in their own right. Here personal possessions were deemed to be owned by her husband but she could make a Testament stating who she’d like her things to go to when she died.

In most common law jurisdictions, everyone has a legal right to own real property and dispose of it as they wish. It made sense to combine a Will and Testament and a Last Will & Testament has become the norm, where the “last” denotes which document is the most recent.

Why is it called a Last Will?

People have drawn up Wills and Testaments for centuries to declare what must be done with their land and their worldly goods should they die.

Over the course of your life, you’ll write more than one Will & Testament. No doubt, you’ll make one before you get married, after you get married and after you have children. Your intentions change and beneficiaries change. The latest Will you draw up is called a Last Will and it legally supersedes all other Wills.

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