Last Will and Testament: One of the Most Important Documents in the Life of an Individual

 

What is a last will and testament? 

A last will and testament is a properly composed legal document that describes how a person wants his or her estate (property and other assets) to be distributed after his or her death.   Normally, when a person has children, a will can also recommend a guardian to take care of minor children.   A last will and testament is also commonly referred to as a will or a testament.   

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Brief history of wills and testaments 

According to historians, the first use of wills dates back to ancient Greece and Rome. Wills were used to transfer possessions between male citizens and their heirs (beneficiaries). They were typically used by male citizens without children or relatives.    Since the 18th and 19th centuries, wills were also used in England. Interestingly, some of the requirements concerning the drafting of a last will and testament in nineteenth-century England are still requirements to this day.    However, there was a difference between a will and a testament in the 18th and 19th centuries. According to Retirement Watch, ‘they were two separate documents containing instructions regarding the disposition of different types of property after the owner’s death.’     Traditionally, a will included only instructions concerning real estate, dealing with the distribution of land and buildings (and other structures) on it that were owned by the deceased.    A testament traditionally constitutes instructions regarding private property. For instance, money vehicles, jewellery, and other precious goods. The testament indicated how the personal items of the deceased were to be inherited by and distributed among beneficiaries.    The reason that two separate documents were used at the time is that certain laws prohibited some groups or individuals from owning real estate. For instance, a woman often could not own real estate without her husband’s consent. Women were allowed to own personal belongings (jewellery, art, etc.). Hence, a woman was allowed to use a testament to designate beneficiaries who would inherit her personal belongings.    Eventually, women earned more civil rights and freedom, inter alia, being allowed to own real estate, causing the distinction between a will and testament to become less distinct, with the result: ‘The former separation of real property and personal property, respectively, between the documents morphed into one document that lays out instructions for both types of property,’ according to Retirement Watch.   

The importance of a last will and testament 

A last will and testament is an important part of estate planning, ensuring that a person’s final wishes are carried out and not ignored if others try to interfere. Put differently, a person has complete control of the distribution of his/her estate and who receives what.    It makes plans and arrangements easier for the heirs of a deceased person.  The winding up of an individual’s estate is executed faster.  A person can appoint the executor(s) of his/her choice.  The creation of a testamentary trust can be requested in a last will and testament, making sure that the inheritance of the testator is protected and well-managed.   It prevents that a person dies intestate.   

Important terms regarding last wills and testaments 

• A testator refers to a person who makes a last will and testament. Previously, the term was used to refer to a man who made a will. Nowadays, the term is used regardless of gender identity. 
• Testatrix refers to a woman who drafts a last will and testament. Although, these days it is considered an antiquated term to refer to a female testator. 
• The guardian is a person (or more than one) who is appointed by the testator to take care of his/her minor child/children after his/her death. A guardian has the legal right and responsibility to take care of the minor(s). 
• The executor is a person indicated in a last will and testament who has the legal responsibility to administer a person’s estate upon their death, executing the instructions of the deceased in the last will and testament. 
• A codicil is an addendum or amendment to a last will and testament. 
• Collation is a term that describes the belief that a testator (for instance, a parent) is presumed to have intended that there should be equality in the distribution of his/her estate among his/her descendants (children). Although, a testator may indicate in his/her last will and testament that the principle of collation will not apply to his/her estate. 
• A testamentary trust is a specific type of trust that is drafted as part of a last will and testament, allowing a third party (called a trustee) to hold and manage assets on behalf of a beneficiary or beneficiaries. Also referred to as a fiduciary arrangement. 
• A trustee is a person who is responsible for managing assets (including money) that have been allocated to a trust for the benefit of the nominated beneficiaries. 
• A beneficiary in a last will and testament refers to anyone (person or entity) who will eventually benefit from the testator’s estate. 

 

Requirements for a valid last will and testament in South Africa 

When a person dies with a valid last will and testament, that person is considered to have died testate and the process of winding up the estate can start.  The requirements to draft a valid last will and testament are quite strict to prevent fraud and impersonation.    The principle of freedom of testation allows testators to specify whatever heirs they please, ensuring that the expressed wishes of the testator are executed upon death.   However, there are several common law restrictions to the freedom of testation. For instance, a condition of a last will and testament cannot be executed when it is illegal, contrary to good morals, too indistinct, or impossible to execute. Furthermore, minor children of the testator enjoy a common law claim to maintenance.    Special legislation concerning pension funds, trust property, or maintenance regarding spouses, may also restrict a testator’s freedom of testation.  The legal requirements for creating a valid last will and testament are specified in the Wills Act (Act 7 of 1953, as amended). For example:    The testator:

• must be sixteen (16) years and older, 
• must have the competency and capacity to draft a will at the time the will is made, 
• should formally declare in the document that he/she revoked all previous wills, codicils, and other testamentary dispositions previously made by the testator, 
• should declare that the document is his/her last will and testament, 
• must have the capacity and a sound mind (not suffering from a mental illness or disability), understanding the nature and consequences of a last will and testament, and 
• must not be forced to draft a will. 

  Witnesses:

• Any person of 14 years and above can be a witness. However, at the time they act as witnesses, they must be competent to give evidence in a court of law. 
• A beneficiary or executor (and his/her spouse) should not sign as a witness. 
• A witness does not have to read the last will and testament. 

  Executor:

• The testator must appoint an executor to wind up the last will and testament after his/her death.  
• The testator can appoint more than one executor. 

  Signatures: 

• The signature of the testator must appear at the foot of every page of the last testament and will as well as at the end of the will. The testator must sign in the presence of two competent witnesses. Normally, any text recorded following the signature at the end of the will is not valid. The signature must be made voluntarily. 

  In certain circumstances, a person may sign on behalf of the testator. When this happens, the substitute must sign in the presence of the testator, the two witnesses, and a commissioner of oaths, who must certify the last will and testament and sign every page.    When a testator is not able to make a signature, he/she may sign the will and last testament by making a mark (X) or a thumbprint in the presence of at least two witnesses, and a commissioner of oaths, who must certify the last will and testament and sign every page.    Although not a requirement, it is recommended that the two competent witnesses also sign at the foot of every page as well as at the end of the testament. The responsibility of a witness is to attest that the signature of the testator is real.    Simply put, the testator and the witnesses must be together at the same time and place when they sign the last testament and will.  Witnesses may not sign by making a mark or a thumbprint.    In writing:

• A last will and testament must be in writing - handwritten or printed. 

  Copy:

• A copy of a last will and testament is not considered a valid will. 

  Information:

• The testator must indicate all the details of all the assets he/she wants to bequeath as well as the names and details of the heirs/beneficiaries. 

  Make sure there is a date on the last page. This will help if more than last will and testament of a testator is found. The last will and testament with the latest date is considered valid. Interestingly, it is not legally required that a will must have a date. It is also advisable to destroy the copies of all previous wills or testaments.    Lastly, keep in mind, that only the original of your last will and testament is acceptable by the Mater of the Court. As mentioned, a copy of the document is not considered valid. Preferably, ensure that you (the testator) and your witnesses sign three originals of the last will and testament. If possible, let your executor keep one original, and a trustworthy friend or relative another one. Make sure that the original in your possession is kept in a safe place and that your spouse or someone else knows where it is kept.     

Consequences when not leaving a valid last will and testament 

Capital Legacy has the following warning on its website: ‘When there’s no will, there’s: 

• bitterness, 
• frustration, 
• rivalry, 
• a family feud, 
• greed,  
• melodrama, 
• trouble, 
• chaos. 

  It is estimated that more than 70% of South Africans die without a valid will in place, while 90% do not plan for the unexpected costs of dying.  If a person has no valid will, the Master of the High Court (the Master for short) will appoint a person, referred to as an Executor Dative to wind up his/her estate.  If a person fails to make a valid will and testament, it is considered that the person died intestate and the assets in the deceased estate will be distributed in terms of the Intestate Succession Act (Act 81 of 1987). This means that the person has no say in who will inherit his/her possessions, assuming there are possessions (assets, property) to inherit.    The Master of the High Court in South Africa provides a list, indicating how the inheritance of the deceased is distributed in order of preference to his/her heirs. For instance: 

• The deceased is survived by one or more spouses. 

The spouse(s) will be the only intestate heirs, inheriting in equal shares.  According to the Master, the following persons/parties are regarded as a spouse for purposes of intestate succession:  

• ‘Any party to a valid marriage in terms of the Marriage Act, 25 of 1961 (civil marriage).’ 
• ‘A party in a subsisting customary marriage which is recognized in terms of section 2 of the Recognition of Customary Marriages Act, 120 of 1998.’ 
• ‘Persons married in terms of Muslim and Hindu religious rites.’ 
• ‘Persons who died before 1 December 2006, and were partners in a same-sex life partnership at the time of their death.’ 
• ‘… persons in same-sex relationships who died on or after 1 December 2006 should only be regarded as “spouses” if they had entered into a marriage of civil partnership in terms of the Civil Union Act.’ 

(Accentuations are by the article writer.) 

• The deceased is survived by one or more descendants, but not by a spouse. 

The descendant(s) will inherit the estate of the deceased. 

• The deceased is survived by one or more spouses, as well as descendants. 

The Master specifies that ‘the spouse or spouses inherit the greater of R250 000 per spouse or a child’s share, and the children the balance of the estate of the deceased.’  A child’s share is calculated by dividing the value of the intestate estate by: 

• the number of surviving children of the deceased, plus, 
• the number of deceased children who have left issue, plus, 
• the number of surviving spouses. 

  Example of calculating a child’s share in the event of a monogamous marriage:  Assume the value of the intestate estate is R6 000 000. The deceased is survived by a wife and three children.  Calculation:   R 6 000 000/ (1 + 3) (one wife and three children)  = R 1 500 000.  Hence, the surviving spouse and each child will each inherit R1 500 000.  Example of calculating a child’s share in the event of a polygamous marriage:  Let us take the same information as in the previous example, but the deceased is survived by two wives (spouses).  Calculation:   R 6 000 000/ (2 + 3) (two wives and three children)  = R 1 200 000.    Hence, the surviving spouses and each child will each inherit R1 200 000. 

• The deceased died without surviving spouse or descendants, but both/her parents are still alive. 

The parents will inherit in equal shares. 

• The deceased leaves no spouse and no descendants but leaves one parent, and the deceased parent left descendants (siblings of the deceased). 

The surviving parent will inherit 50 percent of the intestate estate, while the descendants of the deceased parent will receive the other 50 percent of the estate, receiving equal amounts. 

• The deceased leaves no spouse or descendants but leaves a surviving parent, while the deceased parent does not have any other descendants. 

The surviving parent will inherit the full amount of the estate. 

• Deceased does not leave a spouse, descendants, or parents, but both his/her parents left descendants. 

The intestate estate is divided into equal parts. One half of the estate is then distributed among the descendants related to the deceased via the predeceased mother, and the other among the descendants related to the deceased via the predeceased father. 

• Deceased does not leave a spouse, descendants, or parents, and only one of the predeceased parents left descendants. 

The inheritance will go to the descendants of the predeceased parent who left descendants. 

• The deceased does not leave a spouse, descendants, parents, or descendants of his/her parents. 

The entire intestate estate goes to the nearest blood relation. 

• The deceased is not survived by any relative. 

The deceased estate will be forfeited to the State and will be placed in the Guardians’ Fund which falls under the administration of the Master of the High Court. 

• Child of the deceased born out of wedlock. 

Such a child can inherit from both blood relations, the same as a child born in wedlock. 

• An adopted child of the deceased. 

An adopted child is considered a descendant of his/her adoptive parent or parents, and not a descendant of his/her biological (natural) parent or parents, with the following exception: ‘In the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child,’ according to the guidelines of the Master.   

Some frequently asked questions (FAQs) 

• Can property, such as a house, stay in a deceased person’s name? 

No, the property will need to be transferred to another person (usually a relative) or legal entity.   

• What is the situation when my estate includes South African as well as foreign assets? 

If you have both South African and foreign assets, make sure that you specifically identify your South African assets in your local (South African) will. Regarding your offshore assets, you need to draft a foreign will - preferably with the help of a person/entity specialising in the drafting of wills.   

• What are the requirements regarding amendments to my last will and testament? 

Amendments to a last will and testament after signing are allowed. Ensure that the amendments have been clearly done and that both the testator and the two witnesses have signed next to the amendments. It is not required that the original two witnesses sign. However, the witnesses must sign in the presence of the testator and vice versa. 

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