VIEWS: 13 PAGES: 2 POSTED ON: 3/4/2011
To Will or not to Will Paul Fyfe and Independent Financial Planner and businessman explores and comments on the subject above. What you need to know about or nullify their appoint- Wills ment as executor. The There is little in life that we can court may allow such control, however there are some persons to benefit if they things that we can do to circum- had not defrauded and vent fate. In South Africa, there unduly influenced the is freedom of testation, in that a testator or they would person can make a will according have inherited in terms to one’s own wishes provided it of intestate succession. is not illegal or immoral. · All the formalities re- If a person dies with a will, tes- quired in the execution tate succession takes place in of a will, apply to the terms of the wishes expressed by execution of a codicil. the testator. If a deceased person Every effort needs to be made to dies without a will, s/he would comply with the formalities have died intestate. This means when drawing up a will. In that his/her estate will be distrib- and in the presence of terms of the Wills Act, a court uted according to the laws of in- the testator. has discretion to order the Mas- testate succession. · Where the testator ter of the High Court, to accept Every person who is of the age of signs by way of a mark, a will or any amendments there- 16 years and older may make a a Commissioner of to as the valid will of the de- will unless at the time of making Oaths must certify the ceased even though it does not the will they were mentally inca- identity of the testator. strictly comply with the formali- pable of appreciating the nature ties. The testator’s intention is · Care must be taken to and effect of doing so. The wit- of paramount importance. date the will, so that nesses to the will must be at least there is no dispute with Terminology used in a Will 14 years old and must be compe- the Master as to when · Adiation - the act of tent to give evidence in a court of the will was signed. accepting the benefit law. · The person, who signs under a will. What are the formalities re- as witness, should be at quired for a valid Will? · Codicil - is an annexure least 14 years of age and to an existing will, · The will must be in writ- of sound mind. which is made to supple- ing, hand written or · The executor and any ment or amend an exist- typed. person who stands to ing will. · The will must be signed benefit from the estate · Executor - is a person in full on each page by must not sign the will as nominated by the testa- the testator. witnesses, as this may tor to administer his es- disqualify them from tate. · Two witnesses must sign inheriting under the will in each other’s presence · Repudiation - the act of rejecting the benefit under the will. · Testator - the person making the will (male). · Testatrix - the person making the will (female). What is Massing? Massing is a joint testamentary disposition by two or more testators in one will of their joint estates or a portion thereof, subject to a life interest in favour of the survivor/s (e.g. the life interest can be in the nature of a usufruct, a fideicommissum or annuity). The effect of massing is that the joint estates includ- ed in the massing are disposed of according to the terms of the will on the death of the first-dying testa- tor. The survivor may elect not to accept the benefits as provided in the will, in which case the massing falls away and the assets of the survivor which had been included in the will remain as his/her property and will not be disposed of according to the will. If the surviving testator elects to accept the benefits of the massed will, then his/her assets which formed part of the massed estate are disposed of according to the provisions of the will, and s/he is left with on- ly the limited life interest. How does a divorce affect your client’s Will? If a testator dies within 3 months of his divorce, his ex-spouse would not inherit in terms of his will, un- less a contrary intention is indicated. However if the testator dies more than three months after he has been divorced and without changing his will, the ex-spouse will inherit in terms of that will, if it so pro- vides. It is vital that as soon as you become aware of a client’s divorce, you start to discuss changes to his will. It is one of the cornerstones of financial planning to review a will if there is a life changing event, and divorce is no exception. Can you imagine the heartache that would be caused if your client neglected to make these changes and passed away, unaware that contrary to his intentions, his ex spouse was inheriting his entire estate, to the detriment of his children or even worse, his new wife? The living Will The living will reflects the wishes of the person making their will, with regards to medical decisions if that person becomes incapacitated or is unable to act on their own behalf. The living will is not a legally enforceable document but merely a statement of wishes. The decision of the spouse of the incapacitated person may in fact override the living will. In any event many people do write living wills to ease the burden of guilt associated with a decision such as switching off life support machines. Good reasons to have a valid Will · Intestate succession can be avoided, ensuring that the client’s wishes are followed · Testamentary trusts can be created to provide for minor children and / or spouses · Delays in the administration of the deceased estate can be avoided or minimised · Guardians can be nominated for minor children · Special instructions can be incorporated into the will, for example a living will There can never be a proper estate plan without the making of a valid will. Above are just a few of the testamentary planning advantages and guidelines for the financial adviser to take into account for the client. To avoid the onerous implications of intestate succession and to ensure that the deceased estate is dealt with in accordance with their wishes, a will must be drawn up. A will is therefore of utmost impor- tance in any estate plan. A will is also a valuable source of information regarding a client’s affairs. Being privy to this type of information allows you to build a relationship of trust with your client. It also allows you an inside view which can assist you in identifying further planning opportunities. I would like to thank Liberty Life for this insightful article on Wills. Paul can be contacted on 083 326 0683 or on e mail email@example.com
"To Will or not to Will"