Most of us are too busy with Life to worry about Death. But Death has this annoying habit of showing Life the finger and pitching up at the most inopportune time. While cheating Death may prove difficult, we can ease the process by making sure that we have drafted a will. Yet a worrying number of people do not have wills. Here are some of the more common excuses that people use for not having one.
Ideally, there shouldn’t be any necessity for estate planning. In a congenial, perfect family, surviving members would amicably divide everything equitably without a squabble, and set matters to rest with minimal fuss.
In Utopia, maybe. But we live in the real world.
In reality, death often leads to dissention. Arguments among the surviving members of the deceased’s family make estate planning an indispensable exercise. A will becomes even more essential in the case of a second marriage.
Once your Will has been drafted, what do you do? Here are several things to consider.
- Signing your Last Will and Testament
Once you’ve read through your Will and you’re happy with it, the next step is to sign it. Before you pick up the closest pen and merely scrawl your mark, be aware of the following requirements.
- You must sign your Will in front of 2 witnesses. You can’t sign it, then only later ask some witnesses to sign. After all, the whole purpose of being a witness is to witness! Their presence acknowledges that you did indeed sign your Will and your signature wasn’t fraudulent, you knew what you were doing and were not intoxicated at the time, and you weren’t placed under duress or pressurised by someone to sign it against your volition.
- The following people cannot sign as a witness:
- Anyone named as your beneficiary
- Anyone named as your heir
- Anyone who is married to a person named as your beneficiary or heir
- Anyone under the age of fourteen years
- Anyone who is not of sound mind or is incompetent to give evidence in court
Once your Will is signed, what do you do with it? There are institutions that offer a Will storage service, generally for a fee. But you’re don’t have to use them. The main thing is to ensure that your original Will is stored in a safe place and is easily accessible by your loved ones. It’s also suggested that you:
There are only two ways that you can die. With a Will. Or without a Will. It’s entirely your choice. But here are five reasons why we would strongly recommend that you die with a Will.
- You can appoint your executor.
When you die, somebody has to be appointed as an executor to organise all the paperwork, and generally distribute and administer your estate. Preferably someone disciplined, organised, honest, reliable and trustworthy. By drafting your Will you can identify and appoint an executor of your choice.
- Where can you get a Will?
When it comes to drafting your Last Will and Testament, the first thing to decide is: “Where can I get a Will from?” To answer this, consider whether you’re comfortable with using a template, or if you’d prefer that someone drafts it for you. If your estate is relatively uncomplicated then a template can be a quick, easy and cost-effective option. But if you’re hesitant, or you have more complex requirements, then rather consult with a specialist for some advice.
Cohabitation refers to people (regardless of gender) who live together as if they were married, but are not legally married. Society has progressed a long way since the days when the mere hint of ‘living in sin’ would have raised eyebrows. South Africa’s courts have, equally, kept up with the changing times, and have on numerous occasions recognised the existence of a cohabitation relationship between two people.
I need to store my signed will somewhere. I took it to my bank, but they want to charge me a monthly fee for storing it. It’s just a three-page document, and I don’t want to pay monthly fees for the rest of my life. What should I do with it?
There’re no legal requirements around the storing of your will. There are institutions, such as banks, that offer a safe-keeping service. But this is generally for a fee, unless you’ve named them as the executor in your will. The main thing is for you to ensure that your original will is stored in a safe place and is easily accessible by your loved ones. You could consider the following:
I recently drafted my will, leaving my estate to my three daughters. My eldest daughter’s son signed as a witness, together with my neighbour. A friend expressed concern about this – but my grandson is officially an adult (he’s 19) and he’s not named in my will. Is this a problem?
Generally speaking, anyone who stands to inherit under your will cannot witness your will. In your case, whether or not your grandson can sign depends on how your will is worded. The challenge is the following: what if your eldest daughter dies before you do? Admittedly this is not something you care to contemplate. But life is unpredictable, and your will should be flexible enough to take unexpected life events into account. One of following could happen:
In South Africa, marriages are governed by one of two marital regimes:
- In community of property; or
- Out of community of property
Getting married in community of property requires the couple to do precisely nothing. They just get hitched and ride off into the sunset. South African law provides that when a couple gets married the marriage is automatically presumed to be in community of property – unless the couple sign an AnteNuptial Contract prior to getting married.
Once you’re comfortable that your Will unambiguously reflects your wishes, you need to sign it. You need to be aware of the following requirements:
- You must sign your will in the presence of two witnesses. You can’t sign it, then later ask your witnesses to sign it. They need to witness that you did, indeed, sign your will, your signature wasn’t fraudulent, and you weren’t under any duress or in any way pressurised by someone to sign it against your wishes. You and your witnesses must sign every page of the will, not just the last page.
- The following people cannot sign your will as a witness:
- Anyone who is under the age of 16 years
- Anyone who is not of sound mind
- Anyone named as a beneficiary in your will
- Anyone named as an heir in your will
- Anyone who is married to a person named as an heir or beneficiary in your will
Once it has been signed, your original Will should be stored in a safe place and be easily accessible by your loved ones, and specifically your executor. It is also strongly recommended that you tell your loved ones that you’ve signed a will, and inform them where the will is being stored. You could also consider giving someone you trust a certified copy of your will for safekeeping.