Most people don’t like to think of their death. Yet we know it is certain that that
day will come.
Our law allows everyone over the age of 16 and of sound mind to have a Will. If it
complies with the legal formalities, the law will honour what is stated in the Will
(with only a few exceptions). Your Will is literally your last word as to what is
to happen with your assets when you die.
I have been surprised during my years of practice how many people (even wealthy intelligent
ones) failed to make a Will.
Here are some of the disadvantages of not having a Will.
The grief of the loss of a loved one is often compounded by the confusion amongst
the next-of-kin as to what is to happen to the estate.
Since no executor has been nominated the next-of-kin need to decide who will act
as executor and where will they go for assistance to wind up the estate. This can
cause unnecessary stress and delays in getting the estate reported.
The Intestate Succession Act of 1987 will determine who can inherit and in what
proportions. These provisions may be totally different than what the deceased would
have wanted. It may be very different to what the deceased said to his family. But
since his wishes were not embodied in a written Will, they don’t count.
Often situations arise where the Intestate Succession Act provides that the surviving
spouse must share the estate with the children. The children may be under age and
they can therefore not waive their inheritance in favour of the surviving spouse.
In the end they may have a house of which a certain fraction belongs to the surviving
spouse and the other fractions to the children. In that case, whilst the children
are under age, the house cannot be sold without the Master of the High Court’s consent,
and if the value is more than R250 000.00 without an order of the High Court.
On the positive side, if someone seeks advice from a professional regarding his Will,
many other factors can come in the spotlight that can be discussed and then catered
for in the Will, for example:
Cash flow analysis to ensure there will be sufficient funds for the funeral, the
administration costs of the estate and the maintenance and support of the dependants.
Proper estate planning may help to minimise estate duty and Capital Gains Tax.
Practical issues like the fair division of assets can be explored and resolved.
Most attorneys and banks do not charge thousands of rands for planning and drafting
a Will. My advice is not to delay in getting your Will in order. Even if you have
one, it needs to be revised from time to time as circumstances change.