What is a Will?
A will is a testator’s instructions regarding how his assets are to be distributed following his death.
It must be voluntarily, set forth in a formal signed written document.
The will is therefore a legal document that allows a testator to:
- dispose of the whole or any part of his assets as he pleases;
- institute heirs and appoint legatees, or their substitutes;
- create trusts, appoint trustees and administrators and to regulate their powers;
- appoint executors and guardians; and even
- making a will without specifying beneficiaries, such as revoking a previous will, or appointing an executor or disinheriting an heir.
If a person dies with a valid will, the person is said to have died testate and his/her will is used to distribute their property in accordance with their wishes.
However, when a person dies without leaving a valid will, that person is said to have died intestate and their property is distributed in accordance with the provisions of the Intestate Succession Act 81 of 1987 (ISA).
Having a will provides the following advantages:
- Your estate is entirely under your control, including who gets what.
- You can create a trust to ensure that your assets are looked after
- You can apply conditions before people can inherit
- It takes less time for the estate to be wound up
- You can choose your executors
It is also important to bear in mind that whilst a company as a legal entity can exist perpetually until it is wound up or deregistered, its who are natural persons do not.
A good estate plan will therefore make provision for the appropriate transfer of shares after the shareholder death.
Inheritance law in South Africa
The South African inheritance law applies to everyone who owns property in the country and generally respects the wishes of the deceased.
The only exception is if a spouse is not mentioned in a will, they can apply through the Maintenance of Surviving Spouses Act for part of the estate to support themselves.
Although forced heirship is not practiced in South Africa, there are some legal requirements if the deceased dies without leaving a will.
Inheritance law in South Africa if there is no will
The Intestate Succession Act governs how the estate of an individual who dies without a will is distributed in South Africa.
A spouse who is married in community of property, will receive one half of the estate, and the other half will be distributed according to South Africa’s laws of intestate succession.
Gifts before death
Accordingly, if the deceased made major gifts or donations before their death or throughout their lifetime, they would also have been subject to the corresponding tax rate.
Gifts that a deceased made before their death are unlikely to be taxed in their estate, but if this is an area of concern, seek professional advice.
Drafting a your Last Will and Testament will probably be the most important document in your life, and therefore should require the advice of an attorney.
Through its concern over poor-quality wills, the Supreme Court of appeal expresses its understanding of this importance:
“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. This is by no means a recent phenomenon. Some 60 years ago, in Ex Parte Kock NO, a high court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die . . . to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions’. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case.”
(Raubenheiner v Raubenheimer 2012 5 SA 290 (SCA))
