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WILLS – PART 1 – THE IMPORTANCE OF A WILL

A will is possibly the most important document you will ever sign. It must express your wishes clearly and without ambiguity, and must comply with the formalities set out in the Wills Act. A badly drafted will or a will which does not comply with the necessary formalities of the Wills Act can have unintended consequences for those nearest and dearest to you.

In the Raubenheiner the Supreme Court of Appeal expressed it’s concern over how many people ask unqualified advisors to help them draft and execute their wills. The judge used these words:

“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. This is by no means a recent phenomenon. Some 60 years ago, in Ex Parte Kock NO, a high court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die . . . to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions’. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case.”

So what is a will?

A will is a written document in which a person voluntarily directs what he/she wants to happen with his/her assets after he/she has died. It is important that the will contains the wishes of the person writing the will and not the wishes of the people who are to benefit under the will.
The requirements for a valid will are set out in The Wills Act No. 7 of 1953, but this act, interestingly, does not formally define a will.

Over the next few weeks we will be looking at the formal requirements for a valid will, who is competent to make a will, the different elements in a will, how to execute a will, what should or should not be contained in your will, how to protect vulnerable beneficiaries, the effect marriage, divorce or insolvency may have on your will, how to amend or cancel your will, who may witness your will and how it should be correctly witnessed, who may or may not benefit under your will, and the different ways in which they may benefit.

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 and Mediator

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