WHERE THERE’S A WILL, THERE’S A WAY

A few years ago, my colleagues and I coined the phrase “Where there’s a Will, there’s a way…”, this in effort to add some fun and enthusiasm to that year’s Wills campaign – not only for the team, but for our clients as well.

Having a Will is arguably one of the most important things you can do for yourself, and your family – here’s why.

WHY MUST YOU HAVE A WILL?

By having a Will in place, you ensure that your assets are disposed of in accordance with your wishes after your death. This privilege is called “freedom of testation”.

WHY SHOULD A PROFESSIONAL DRAFT YOUR WILL?

While the law does not prevent an individual from drawing up his own Will, I would not recommend it as there are certain legal formalities which must be complied with for the Will to be valid.

An inexperienced person may overlook these formalities, which could result in your Will being rendered invalid. I’ve seen many poorly drafted Wills, which have proven tricky to execute after the testator* has passed on. I’ve seen families divided over this, and disputes arising around what the testators true wishes and intentions were. A tad bit tricky to prove once the person is no longer around to provide the required clarity.

SINGLE OR JOINT WILL?

A single Will is the Will of one person. Anyone can make a single Will, irrespective of their marital status.

A joint Will is a Will of two persons – it could be more but this seldom happens in practice. Most joint Wills are made by married couples or partners in common law relationships, however this is a not a legal requirement. There is almost always a desire by the parties to a joint Will to benefit the survivor of them upon the death of the first dying party. In other words, the parties to a joint Will bequeath their estates to each other; whoever survives the other inherits.

A joint will must provide for a bequest** of the estate of the first dying of the parties, a bequest of the estates of both parties if they die within a short period of one another and a bequest of the survivor’s estate should he or she survive the first dying and thereafter die without making a further will. Provided these requirements are met a joint will is perfectly acceptable.

DYING WITHOUT A WILL?

The best way to ensure that after your death your assets are distributed according to your wishes is to draw up a Will. If you die without a valid Will, your family might suffer inconvenience and even severe hardship. Where a person dies without leaving a valid will, the estate will devolve in accordance with the Intestate Succession Act. This means that the estate will, in such circumstances, devolve upon the surviving spouse or the surviving spouse and children of the deceased and grandchildren (where a child has predeceased the deceased leaving children). Where there are no descendants, the parents will inherit, and in their absence the brothers and sisters will inherit.

SHARED BANK ACCOUNTS AND THE DEATH OF ONE PARTNER

So, what happens in the event that a spouse A has given the spouse B power of attorney to operate a banking account, and the spouse dies? Can spouse B continue to operate the account?

In terms of our law, a power of attorney granted by a person during his or her lifetime becomes null and void when the person who granted it dies. In addition, once a person has passed away no one is legally permitted to deal with any assets in that person’s estate except an Executor in whose favour the Master of the High Court has issued Letters of Executorship.

Therefore, spouse B may not continue to operate the deceased’s spouse’s bank account.

MARRIAGE IN COMMUNITY OF PROPERTY AND BANK ACCOUNTS

What happens in the event that a couple is married in Community of property, and one spouse dies. Will the banking account(s) in the name of the surviving spouse be frozen as well?

From a strictly legal point of view the answer is yes, the surviving spouse’s banking accounts should be frozen as well. However in practice it may be possible for the Executor to make alternative arrangements with the banking institution to allow the surviving spouse to transact on his or her own accounts; provided he is satisfied that there is no possibility of the community estate being insolvent.

REVIEW YOUR WILL

Ideally, an annual review of your Will is sufficient.

The following should prompt a review (this list is not exhaustive, please consult your financial advisor for advice and guidance):

1. The birth of a child

2. Marriage

3. Divorce

4. Death of a loved one

5. Change in assets (Acquiring or disposing of assets)

Remember, where there’s a Will, there’s a way.

xx

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Definitions

*Testator – A person who has written and executed a Last Will and Testament.

** Bequest – A bequest is property given in a Will.

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