Understanding Wills (Wills Act 6:06)
A will is a declaration of a person’s wishes regarding the manner in which he would want his affairs and be dealt with in the event of death.
Importance of a will
It is important to make a will because:-
- if you die without a will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed
- if you have children, you will need to make a will so that arrangements for the children can be made if either one or both parents die
- it allows you to specify the beneficiaries of your estate
- allows you to make adequate provisions for the specific needs of your beneficiaries.
- Create a trust for minor/special children
- State your funeral and burial preferences.
- If done well reduces family conflicts
- Regulate the exact manner in which you would want your property to be distributed.
- Nominate an executor of your choice (you may want a person with some particular attributes.
- To make special bequests which any other person acting on your behalf would ordinarily overlook.
- Avoid some of the problems associated with intestate succession.
- To nominate a guardian for minor children
Some common mistakes in making a will are:-
- not being aware of the formal requirements needed to make a will legally valid
- failing to take account of all the money and property available
- failing to take account of the possibility that a beneficiary may die before the person making the will
- changing the will. If these alterations are not signed and witnessed, they are invalid
- being unaware of the effect of marriage, divorce or dissolution of a civil partnership on a will
- being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the will could be overturned.
Who can benefit under a will?
“Any person whether born or unborn, natural or juristic and whatever his legal capacity, may benefit”
Who cannot benefit from you?
- Any person involved in the testation process e.g. witnesses, presiding magistrates, anyone who writes your will under your instructions and stands to benefit from it. It is therefore critical to ensure that none of the witnesses are supposed to be beneficiaries else they are disqualified.
- Any person who claim a benefit through an incapacitated person e.g. the spouse of a mentally challenged beneficiary.
- Any person who, through fraud, duress or undue influence has caused the testator to make a will or amend a will to confer a benefit of that third party.
- Any person who prevented or attempted to prevent the testator from altering the will or from making a new will.
- Any person who unlawfully and intentionally destroys or hides either the original or a copy of a will made by the testator.
- Any person who has murdered the testator, or a spouse or child of the testator.
- Any person who unlawfully causes the benefit to accrue to himself
Are there any legal restrictions on what can be included in a will?
- Yes, any provisions which are either illegal or are immoral e.g. you cannot renounce your obligation to maintain your minor child who is not yet self-supporting.
- In addition, you cannot withhold your spouse to her lawful share of the matrimonial property if married out of community of property regardless of the circumstances prevailing at the time of death.
What are the formal requirements for a making a valid will?
- Must be in writing – this includes the typed will. Although oral wills are acceptable. This is not for a someone who wants to protect his assets.
- Testator must sign each page as closely as may be to the end of the writing on each page concerned.
- Testator’s signature must be witnessed by at least two competent witnesses who must be present at the same time.
- Each competent witness must sign each page of the will in his full name in the presence of the testator and of the other witnesses.
- Please note that this is signing in full and not just initialling the pages.
How does a subsequent marriage affect my will?
- As a general rule, a will becomes void upon the subsequent marriage of the testator. – unless the testator expresses intention to the contrary.
- A joint mutual will does not become void upon the subsequent marriage of the surviving spouse.
- A will made by a man under a legally recognised polygamous marriage shall not become void if, while still married to one or more wives, he marries another wife.
- A will remains valid upon the subsequent marriage of the testator if it merely disposes of property that would not have gone to the spouse or child of the subsequent marriage if the testator had died intestate.
How does a divorce affect my will?
- A decree of divorce is deemed to revoke the appointment of the one spouse as an executor or administrator of the other’s estate.
- Any disposition in favour of the former spouse shall lapse, unless it appears that the testator intended otherwise or where the spouse has prior rights, e.g. a usufruct.
What about my subsequent children?
- Subsequent children are acquired through birth, legitimation (including legitimation through customary law) or adoption)
- If the will makes no provision any other child of the testator, the children are entitled to the same benefits as they could get intestate succession.
- If the will makes reference to the testator’s other children, the subsequent child(ren) shall be entitled to an equal benefit.
Where to keep a will
Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-
- at home
- with a lawyer
- at a bank
- Master of High Court
How to change a will
You may want to change your will because there has been a change of circumstances. You must not do this by amending the original will after it has been signed and witnessed. Any obvious alterations on the face of the will are assumed to have been made at a later date and so do not form part of the original legally valid will.
The only way you can change a will is by making:-
- a codicil to the will; or
- a new will.
A codicil is a supplement to a will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries.
A codicil must be signed by the person who made the will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original will.
There is no limit on how many codicils can be added to a will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new will.
Making a new will
If you wish to make major changes to a will, it is advisable to make a new one. The new will should begin with a clause stating that it revokes all previous wills and codicils. The old will should be destroyed. Revoking a will means that the will is no longer legally valid.
Destroying a will
If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the will are reassembled), it might be thought that the destruction was accidental. You must destroy the will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared valid.
Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.
If a person who made a will commits suicide
If a person who made a will commits suicide, the will is still valid.