This is the last article in this series on wills. I promised to discuss minor heirs and the importance of alternative provisions. I would like to set out the requirements for a valid will and mention additional clauses which you might want to include in your will. Hopefully there will be enough space in today’s article to cover all of these.
The age of majority in South Africa is 18 years. A child, or minor, is any person younger than 18 years of age. In terms of the Administration of Estates Act any movable property inherited by a child may be delivered to his/her guardian for safekeeping on behalf of the child, and any money inherited by a child must be paid in the Guardian’s Fund. The child can claim the money from the Guardian’s Fund on or after their 18th birthday. Immovable property can be registered in the child’s name but the child cannot sell or mortgage the property without permission from either Master or the High Court, depending on the value of the property.
Many testators do not want their minor heirs’ inheritance held in the Guardian’s Fund as they would like to direct how the funds should be invested, and how the income, and if necessary the capital, should be distributed while the child is a minor. Testators are also concerned that 18 is too young to receive an inheritance, and don’t like the restrictions placed on dealing with immovable property owned by a minor. One way to circumvent these obstacles this is to create a trust in your will as discussed in last week’s publication. The trustees can hold the minor’s inheritance in trust until their 18th birthday, or even their 21st , 23rd or 25th birthday if you believe an 18 year old is not responsible enough to manage a large inheritance. The trust allows you to dictate to the trustees how and where the monies should be invested, and what the trustees may use the funds for while they are held in trust. You can instruct the trustee to pay for schooling at a particular school, tertiary education, or to buy a car on the child’s 21st birthday. You can also specify what the trustees may or may not do with the immovable property.
providing for alternative beneficiaries,
If you do not provide for alternative beneficiaries in your will then, depending on the wording of you will and other factors, any of the following could happen:
That beneficiary’s descendants may inherit in their place
That portion of your estate may devolve in terms of the rules of Intestate Succession
If the heir or legatee is part of a group “I leave my estate to John, Judy and Jack” and one of them does not inherit, it will go to the remaining beneficiaries in that group and not to that heir’s children
In order to create certainty it is best to state in your will who should inherit if your chosen beneficiary does not. “I bequeath my car/estate to Jane, and failing Jane to John and failing John to Sally”.
In the case of conditional bequests discussed in Part 5, it is important to state what must happen if the condition is not met. “I leave my car to my granddaughter Beth provided she gets 5 distinctions in matric. Should Beth not achieve 5 distinctions then I bequeath my car to my nephew Robert.”
There are clauses which are included in wills as a matter of course, and there are other important clauses which are seldom included. You need to understand these clauses and only include them if they are required.
Excluding marriage in community of property
This clause is found in almost every will. The effect of the clause is that if any of your heirs are married, their spouse cannot benefit from the inheritance.
Insolvency of an heir
A clause stating that a beneficiary cannot inherit if they are insolvent is not valid unless you appoint an alternative beneficiary. It is important to word this clause correctly if you do not want the trustees of the beneficiary’s insolvent estate to claim the inheritance.
The concept of collation comes from the belief that parents want to benefit their children equally and is there to guard against one heir being favoured over the others. Collation applies only to the testator’s descendants who share the residue of an estate as heirs. “I leave my estate in equal shares to my children A, B and C.” If A received a large benefit from the testator during his lifetime but B and C did not, this must be offset against A’s inheritance. Typical examples are university education, the deposit on a house, or start-up money for a business. The size of the gift, loan or donation is assessed in relation to the testator’s assets.
If you have benefited one of your children significantly more than the others during your lifetime that child will inherit proportionately less from your estate if collation is applied so that, overall, all your children have benefitted from you equally.
If you do not want a descendant, who is one of a group of residuary heirs, to collate then you need to state so clearly in your will.
If you have an online presence such as a face book account, then it is important for you to have a clause in your will authorising your executor to access and close down these accounts. If you do not have such a clause the site administrators will not allow your executor access and it will be extremely difficult to close the accounts down.
REQUIREMENTS FOR A VALID WILL
Your will does not have to be dated, but it is a good idea to date your will because if more than one original will signed by you is found, the Master needs to know which is the last will.
You must sign your will on each page and at the end. This means that on the last page there cannot be a gap between the end of the will and the signatures. If the will ends in the middle of the last page you and the witnesses must sign where the writing ends and not at the bottom of the last page.
You must sign your will in the presence of two witnesses who must also sign each page of your will and at the end of your will. You and both witnesses must be in the room at the same time and must all watch each other sign.
If you cannot sign then you can make a thumbprint or mark, or you can instruct someone to sign the will for you. In this case you must sign your will in the presence of a commissioner of oaths as well as the two witnesses, and the commissioner must sign each page of the will and affix a particular certificate. It is important to use a Commissioner of Oaths who understands the provisions of the Wills Act.
Your witnesses must be 14 years or older and competent to give evidence in a court of law.
Your executor or beneficiaries and their spouses should not witness your will if they want to benefit under it.
Your witnesses cannot sign by making a mark, but their initials are considered to be a proper signature.
If you make any changes to your will they must be signed and witnessed in the same way as the will itself.
I hope you have found these articles useful. If you have missed any parts the entire series can be found on our facebook page or on our website www.randles.co.za.Go to the Randles News tab and then click on the Social Media link.
By Joanna Mayne – Director (Attorney, Conveyancer, Notary Public and Mediator)