To Will or not to Will by gyvwpsjkko


									                        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
                                       ·    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

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