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Where There Is a Will, There Is a Way

Where There Is a Will, There Is a Way

Moore Cape Town’s Estate Planning Department

The True Benefits of an Updated and Properly Authorised Last Will and Testament:
Without a valid Will, an individual passes away under the provisions of the Intestate Succession Act 81 of 1987 (‘the Act’) and as a result loses the opportunity to exercise their privilege to freedom of testation. This means that the individual does not leave the remainder of their assets according to their own personal wishes but rather in terms of a predetermined set of rules as set out in the relevant Act. 
A Will can be used to nominate the best and most appropriate person to act as the individual’s Executor, and thereby find a balance between the remaining family members’ needs, and also ensure adherence to the procedural requirements of the Master of the High Court.
In the event that an individual passes away without a valid Will, their assets will be divided amongst their closest relatives, for example, their surviving spouse, children, parents or siblings in a specific order as determined by the Act.
The Law Requires the Following of a Person (Testator) at the Time of Drafting a Valid Will:

  • The person must be older than 16 years of age; 
  • The person must be willing and of sound mind during the drafting of the Will;
  • The Will must be in writing;
  • The Will must be signed by the person (or his/her representative in the presence of the Testator) at the end of each page (or a mark or thumbprint is to be made by the Testator if unable to sign). In the event that a representative signs on behalf of the Testator or the Testator signs by way of a mark or thumbprint - a Commissioner of Oaths must be present and issue a certificate confirming the identity of the Testator and the validity of the signature;
  • The Testator must sign the Will in the presence of two competent witnesses (older than 14 years of age) and the two witnesses must likewise sign the Will.

Very Important to Note When Signing a Will: If an heir or beneficiary is to receive any benefit from a Will, such heir or beneficiary cannot witness or write the will on Testator’s behalf, either wholly or partially. The nominated Executor may also not sign the Will as a witness.
In Addition to The Last Will and Testament, An Individual May Also Elect to Prepare the Following Documents:
Living Will: A Living Will is a declaration made by an individual as a competent adult, stating the extent of the health treatment they wish to receive in the unfortunate event that they lack the capacity to make healthcare decisions for themselves. It consists of advance refusal of specified treatments, but it may also contain information about their values and beliefs.
Advance Directive: An Advance Directive is a form of Living Will which is more comprehensive, in the sense that an individual can also appoint a Medical Proxy (close friend/family member) to make medical decisions on their behalf.
Letter of Wishes: In the event that an individual is a founder of an Inter Vivos trust, they can write a Letter of Wishes to the current board of trustees of the trust, which can be used to guide the trustees’ discretion as to what their wishes are for the remaining trust fund. This will enable the trustees to incorporate such wishes when applying their permitted discretion in making decisions concerning the trust.
Please note that while a Will is legally binding on the Executor of a deceased estate, a Letter of Wishes is not binding on the Trustees of a Trust.
Do South African Residents Need an Offshore Last Will and Testament?
The need for a foreign Will is driven by the nature of an individual’s offshore assets. A South African resident who owns real estate or fixed property situated offshore, should always ensure that a valid foreign Will is in place to deal with such assets in the event of death. This document will take into account the laws, regulations and authorities in such other jurisdictions.
In the absence of a foreign Will and should the primary South African Will be in conflict with such foreign laws and regulations, the South African Last Will and Testament will not be executable and could create an undesired result in the wind-up of an individual’s foreign estate. 
If an individual owns movable property abroad, the following factors may play a role in answering the above question: 

  • Jurisdiction in which the asset is held;
  • Who will inherit from the Will and where they are based in the world; 
  • Whether forced heirship rules are applicable in the jurisdiction where the asset is held as this varies from country to country; 
  • Whether the country has a double taxation agreement with South Africa; 
  • Whether the country in which the asset is held will recognise the individual’s South African Will by way of a Probate Application.
  • If an offshore will is put in place, the SA will should indicate that it covers SA assets only.

Please note: Having an outdated Will is almost as serious as not having a Will at all. Also, the real value of a Will is created through the related advice which supports and completes the document and gives effect to one’s true intentions.
If you require assistance with Estate Planning, Wills and Related Services, get in touch with your local Moore firm.