Will and Testament Documents on a Table

Wills and Estates: Frequently Asked Questions

Many people don’t want to think about drafting their Last Will and Testament.

None of us want to think about becoming ill or aged.  The reality is that anyone at any age must have a Will.  As the saying goes “it’s always better to be safe than sorry”.

When having a Will drafted by an Attorney, the individual must understand what the document contains, as well as the consequences in terms thereof.

This article will therefore discuss the answers to the most frequently asked questions that we, as attorneys, receive and the importance of such questions.

What is a Will?

A Will is a document which will direct the management of your assets and liabilities upon your death.

When Should I Think About Drafting a Will?

You should always have a Will and it should be updated on any changes in your life, e.g. getting married, having a child, buying or selling a property etc.

What Happens if I Don’t Have a Will?

If someone dies without a Will it means that their assets will devolve unto their next of kin and other family members via the intestate stipulations in the Administration of Deceased Estates Act.

This process is usually more time consuming as it will take longer to administer the Estate. It can also place a disadvantage on certain people who may not inherit from the estate as you might have wanted or intended them to.

What Makes a Will Legally Valid?

A Will MUST be in writing and dated and signed by the person whose Will it is (the “testator/testatrix”).

It must be witnessed.

A Will may, in certain circumstances, be “signed” by way of thumb print and/or seal if one is physically unable to sign, but the legal provisions in respect thereof are very strict.

Contact our offices for direction if you wish to discuss the drafting of your Last Will and Testament.

When Can a Will be Challenged?

A Will can be challenged for many reasons e.g.

If there is a question as to whether the person had drafted their Will under duress;

Where it is questionable whether such person was competent or unable to comprehend what the contents were when drafting the Will;

Where such person did not meet the proper requirements to make such Will legal and valid according to the law.

Where are Wills Kept?

As attorneys, we draft the Will on behalf of and to the satisfaction of the client.  The client then signs the Will and the document is witnessed.  The document is then placed into Securities, where it is protected against theft, fire etc.

What is a Testamentary Trust?

A Testamentary Trust is a trust created within a Will whereby another person is nominated to inherit a property in the future.

Most people hold money or assets in trust for their children to access when they reach the age of 25 years old, as they will be more competent to utilize it at that age.

What is a Living Will?

A Living Will is a separate document which is usually attached to a Will.  This document states that in the event of someone being hospitalized and medical intervention will not save the person’s life, then the hospital is to cease any procedures which will only prolong the person’s life and/or suffering. This usually occurs when a person is terminally ill or permanently in an unconscious state.

How Many Executors and/or Trustees Should I Have?

By law there should be at least one executor and if there is a Testamentary Trust created, there should be at least two trustees. Usually executors and trustees are the same people.

What Happens to My Minor Children When I Die?

Both parents are natural guardians of children, so whether you are married to your child’s other parent or not is irrespective. If one parent dies, the child/children will be in the care of the other parent. However it is important that if both parents die for example simultaneously, that another person, such as a family member, or friend, is nominated to care for the child/children.

In conclusion, this article clarifies the most important aspects to a Will as questioned by clients. One of the most important things that we like to instill to our clients is that you should create a Will as soon as possible, as it is not dependent on age. One must be competent and of sober mind when creating their Will and most importantly the client MUST understand their Will when signing it so as to avoid future complications.

For more questions or to create a will with us please don’t hesitate to contact SCHWENN INC today at 031 563 1874 or email us on Charmaine@schwenninc.co.za. We look forward to helping you safeguard your legacy!