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Many people are aware of the need to have a Will. However, some still find comfort in writing down their wishes on piece of paper, email, SMS or even a WhatsApp message to a family member or friend to advise them of their wishes, hoping that when they pass on, these writings will be relied upon as an indication of how to distribute the assets they have left behind.
Despite the good intentions of the writer of these testaments, what they are not aware of is that this exercise does not comply with the requirements of the Wills Act “Act 7 of 1953” as amended, that guides us on the formalities to be followed for a Will to be considered valid. As such, the need to seek an expert professional in this field cannot be emphasised enough.
Having a valid Will makes the process of winding up a person’s estate less onerous, saving costs and time. This is what we generally would wish for, a seamless winding up process that will benefit all involved, especially those that we intend to leave our assets to.
A well-drafted Will is not the one that passes the scrutiny of the Court for its interpretation and validity when it's challenged, but is the one that is simple to interpret without the need to approach any Court of Law for interpretation.
If we have time to work and accumulate assets during our lifetime, surely we can make time to find a qualified professional to assist us in drafting a legally compliant Will that will be fit for purpose. Failure to do this may render the Will or parts of it invalid and the entire estate or part of it then being administered under the Intestate Succession Act, “Act 81 of 1987”. This means that your wishes as to whom and how your assets are distributed may be disregarded.
This unfortunate scenario can be avoided by engaging the services of a qualified professional when drafting one's Will. It is commonly accepted that if you want certainty that your car is well serviced and fit for purpose, then the servicing/maintenance should be done by a qualified and accredited professional in the field. As such the same principle should be applied when drafting one’s Will, bearing in mind that, as opposed to a car service, we naturally do not have a second chance to make corrections to our Will if it is not valid as you will no longer be around to correct it.
It has been said: “the other bank of the River Styx is lined with the shades of dissatisfied Testators waiting to receive the judicial personages who have misconstrued their Wills.” Don’t we all want our wishes to be honoured in terms of who will inherit our assets after we pass on? This can be achieved by having a valid, well written Will in place.
If you do not have a valid Will as yet, we suggest that you engage the services of a qualified professional to assist you in drawing one up.
Andrew Macuacua
Deceased Estates Administrator, Johannesburg