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Wills and Estates

A Will can be described as a declaration of what a person wishes to have happen to his/her property after death. It determines not only what happens to the assets, but also what happens to his/her remains and to the welfare of his/her children. 

It can thus be described as a written document executed by a testator (the person executing the Will), setting out his/her specific instructions following death.

Not only is a Will important for the sake of specifying what happens to a person’s estate, it is also how his/her wishes are undertaken in respect of what happens to the minor children.

As a result, many people who have minor children (or expect to have children in the near future), may execute a Will which incorporates a provision directing who shall be the legal guardian of a minor child, as well as the fact that a trust is to be established for the benefit of the children (to ensure their upbringing is maintained, inclusive of schooling and living expenses). These kinds of trusts may fall away once the children reach the age of majority, after which they will receive the balance of the benefits due to them under the Will.

Accordingly, should a person fail or neglect to execute a Will, their estate will be distributed, not according to their directions or intent, but according to the provisions of the Intestate Succession Act (No. 81 of 1987).

The Intestate Succession Act is biased in favour of a surviving spouse, children and direct bloodline. This may result in benefits being awarded to a beneficiary who the testator disliked, and who would not have normally been a beneficiary in a Will, or perhaps receiving more than was intended.

In the case of small estates (where the assets are valued at less than R 125 000.00), the Intestate Succession Act is biased in favour of the spouse only, as according to the Act, a surviving spouse shall inherit either R 125 000.00 or a child’s share (whichever is the greater). Therefore, if the estate is only worth R 125 000.00, the surviving spouse will inherit everything, thereby disinheriting the children of the deceased.

What role does a person’s culture play?

Although the drafting of a Will is commonplace in western society, it remains largely an untouched subject in the larger black communities.  There are various reasons why people in the black community do not want to execute Wills, and the major factor is due to the cultural aspect involved, of which many people feel much pride for.  

Dr Ruby Zauka, a lecturer in applied language studies at NMMU, stated that although Wills were important for settling possible family disputes, they remained rare in black communities where traditional customs took preference.

Accordingly in many instances, one family member is placed in line to inherit everything (as in South African Customary Law), and takes on the responsibility of ensuring that the deceased’s beneficiaries and family members are looked after.

This person is thus conferred fiduciary duties, meaning an ethical relationship of confidence or trust regarding the management of money or property for the benefit of the intended beneficiaries.

The problem with this is that people are only human and/or have differing values and morals. This can lead to the squandering of assets while the family face losing precious monetary support.

What happens in cases where no Will was executed?

If no Will has been executed, the Intestate Succession Act governs how the estate is administered and how the assets will devolve. Thus leading to a possible conflict of the intention of the testator and fighting between the family.

This also means that the testator has not indicated what is to happen to the minor children, in terms of appointing a legal guardian.  This may result in one party being forced to make a formal application to the High Court for the appointment of a legal guardian – the costs of which can exceed R 60 000.00.

Another problem that may arise where no Will has been executed is where step children are involved.  In the event a married couple have children from a previous marriage or relationship, if one party dies and their estate is a small estate, the survivor will inherit everything.  If the survivor then dies, the children of the first dying will be disinherited as the children of the survivor will inherit everything.

How does one draw up a Will? 

A Will is a serious and vital document and should only be drafted by a skilled professional.

A person can execute their own Will, however this is never recommended.  After all, just because you can cut someone open with a knife, does not make you a surgeon.

A professional can draw a Will according to a person’s individual needs, and give sound advice as well. This will ensure that all vital and necessary provisions are included, many of which may never have crossed your mind.

I suggest that a person approach an attorney who has experience in the drafting of Wills and the administration of deceased estates.  I also suggest appointing an attorney as the Executor, as this will allow your family to grieve and also ensure that the estate will be administered correctly, and under the watchful eye of the Master of the High Court.