Understanding the ups and downs of a Will
What is the difference between a joint will and a living will? What exactly is a will? And what can make it invalid? We answer your frequently asked questions about wills.
What is a will?
A will is a written instrument that contains instructions to ensure your wishes are carried out legally and your loved ones are taken care of, and items of monetary and sentimental value are properly protected and distributed on your death. Anyone over the age of 16 years may make a will.
The loss of a loved one is a very traumatic experience. It is at this time that one needs the love and support of family and friends. It is also a time when a multitude of tasks are presented and must be attended to. It is a time when professional assistance is a comfort and a must.
If you pass away without leaving a will, or your will is not valid for any reason, the beneficiaries will be determined according to legislation – the Law of Intestate Succession. The law determines who the closest blood relatives are and distributes the assets accordingly. In such a case, it is important to note that a family member you may never have chosen to inherit from you could end up with all your assets. In addition, if you live with someone, but are not married, the law will not recognise your ‘common-law spouse’ as the beneficiary of your estate, unless you have left a will naming your partner as beneficiary.
What is the difference between a joint will and a living will?
A joint will is made by more than one person together in one document. This should only really be used when you are married IN community of property with one joint estate. When you have separate estates, it is best to have separate wills.
A living will is basically a statement that confirms your wishes that you want to die naturally when you have a terminal condition.
What will make a will invalid?
There are many reasons, but the two most common ones are invalidity and beneficiaries that may be disqualified.
What does invalidity mean?
Invalidity simply means:
• The will is poorly drafted.
• The Testator has not signed on all pages.
• The will is signed by less than two witnesses.
• Beneficiaries signed as witnesses.
• The spouse of a beneficiary signed as a witness.
• The will is handwritten by a beneficiary.
• The will is poorly drafted or simply not executable.
What can be done when there is no will?
Your assets will be distributed according to a set of fixed rules laid down by the Intestate Successions Act and become an intestate estate. In this case, the natural heirs as determined by the law will inherit from the deceased estate.
What if the will does not meet the required legal criteria?
The Master of the High Court will then determine whether he will accept the will or not.
August 1, 2016
Grant van Zyl
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