Useful provisions to include in a will

• South Africa

• Other

21-10-2020

As we are approaching National Wills Week, which will run from the 26th to the 30th of October this year, it is vital to understand the importance of having a valid will. This article will highlight some useful provisions to include in a will.

A valid will is one that complies with all the formalities stipulated in the Wills Act No. 7 of 1953 (“the Wills Act”). If a will is not in compliance with the formalities stipulated in the Wills Act, the court has the discretion to decide whether the will can be accepted as the deceased’s last will and testament.

Should a person die without leaving a will, or should a person’s will be declared invalid for non-compliance with the provisions of the Wills Act, his estate would devolve in accordance with the laws of intestate succession.

Dying intestate means that your estate will devolve according to what the law dictates and not according to your wishes. In an intestate estate, the heirs entitled to benefit would be determined by section 1(1) of the Intestate Succession Act No. 81 of 1987 (“Intestate Succession Act”). If none of the beneficiaries listed in the Intestate Succession Act are alive and the other relatives of the deceased cannot be traced, the proceeds of the intestate estate are paid to the Guardian’s Fund, and if not claimed within a period of 30 years, the intestate estate is forfeited to the State.

The following are useful provisions that can be included in a will:

1. The appointment of an executor

An executor is the person who attends to the administration of the deceased estate. The testator can nominate any person to be the executor of his estate, provided they are over the age of 18 years. It is always advisable to nominate a person who is knowledgeable and experienced in administering estates. By drafting a will, the testator is able to nominate an executor of their choice.

2. Directions for the formation of a trust and nomination of trustees of any trust created in terms of your will

Should you wish for your minor child or elderly parents, or any other person, to be financially taken care when you are no longer around, you can include a provision in your will for the formation of a testamentary trust. Any assets bequeathed to your minor child, for example, can be held in trust until the child reaches a certain age. This means that your nominated trustees would look after the inherited assets and attend to the maintenance of your child in your absence.

3. Nomination of a guardian for a minor child

It is also possible to nominate a guardian for your minor child in your will, provided that the parent making the nomination has legal guardianship of the minor child.

4. Interim maintenance

Provision can be made for interim maintenance pending the distribution of the estate. This is in terms of section 26(1A) of the Administration of Estates Act No 66 of 1965. which allows an executor to release an amount of money from the deceased estate which is sufficient to provide for the subsistence of the deceased’s household. This, however, can only be done with the consent of the Master of the High Court and before the liquidation and distribution account has lain for inspection.

During National Wills Week any person may approach a participating attorney to have a valid will drafted.

Co-authored by: Mandisa Mngadi