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WILLS – PART 2 – WHO CAN MAKE A WILL AND WHAT CAN BE DONE IN A WILL

I hope that you read last week’s article on the importance of having a will. If you missed it, you can find it on our website www.randles.co.za under the Randles News tab and click on the Social Media link, or find it on facebook.

Can I make a will?

I am sure by now you are wondering whether or not you are indeed able to make a will. To answer this question, you need look no further than section 4 of the Wills ActNumber 7 of 1953. In terms of this legislation anyone who is:

  • aged sixteen years or older and
  • is mentally capable of understanding what he or she is doing and
  • is mentally capable of understanding the consequences of what he or she is doing may make a valid will. So, if you are sixteen or older and know what you are about, you can make a will.

If you are sixteen or seventeen years old you are still a minor, and you might be wondering whether or not you need your parent or guardian to help you draw your will, or consent to your will. The answer is no.You can execute a valid will without their knowledge or agreementbecause the Wills Act gives you the right to do so.

If you are worried that someone might believe you were not mentally capable at the time you executed your will then rest assured; they will have to prove it. After your death your will willbe delivered to the Master of the High Court, and if it is validly executed (we will discuss the requirements for this a later article) then the Master will accept your will.Any person alleging that you were not mentally competent at the time you executed your will, will have to bring a High Court application and prove to the satisfaction of the court that you were incapable of understanding that you were making a will, or that you could not have understood what effect making your will would have. In practice they would have to prove that you were possibly so drunk that you could not have known what you were doing, or that you were so ill that you were unable to express what you really wanted in writing.

The South African Appeal Court made the following ruling in the case Tregea v Godart 1939 AD 16 50.

“…in cases of impaired intelligence caused by physical infirmity, though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. Voet 28.1.36 states that not only the healthy but also those situated in the struggle of death, uttering their wish with half-dead and stammering tongue, can rightly make a will provided they are still sound in mind.”

On a serious note, if you are for any reason concerned that your family may challenge your mental capacity, then it is a good idea to sign your will in the presence of doctor, and ask the doctor to sign a certificate that you knew and understood what you were doing at the time that you executed your will.

Even if you have been declared incapable of managing your own financial affairs, it does not necessarily mean that you are incapable of executing a will.

What can or can’t I do in my will?

This is a long topic which we will delve into in more detail next week. What you need to know for now is the basic principle that, in terms of South African law, a testator (that is the person making the will) has freedom of testation. This means that you can dispose of all and any of your assets however you want to, and to whomever you want to. Although your freedom of testation is constitutionally protected, it is not completely unrestricted. These are some of the ways in which various statutes or the common law can effectively limit your freedom to do as you please with your assets:

  • you cannot make a bequest which is illegal or against public policy
  • the wording of your will must be clear enough to be understood so that your wishes can be carried out
  • you have a legal duty to maintain and educate your minor children. If you have not provided for your minor children in your will then, after your executor has paid your creditors, he or she will have to use your remaining assets and funds to provide for the maintenance of your minor children before any assets can be awarded to the beneficiaries named in your
  • If you have disinherited your spouse, he or she may have a claim for maintenance against your estate.
  • If you have disinherited your spouse he or she may have a right to claim certain assets or sums of money from your estate. This will be determined by whether you were married in community of property or out of community of property, and whether or not your marriage was subject to the accrual system.

There are other limitations such as those imposed by the Subdivision of Agricultural Land Act, but these only affect a few people and the implications should be discussed with a legal advisor.

Next week we will look at how to go about drawing your valid will.

For more information on this or any other legal related queries please contact us at propertypages@randles.co.za or 033 392 8000

By Joanna Mayne – Director
Attorney, Conveyancer, Notary Public and Mediator

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