Durban

Q: Why should we give you the Identity Numbers or dates of birth of our heirs?

A: It can be hard to understand when it is your will and your family members why we would need their personal details but the most common reason for such is the time between when one drafts their will and when they pass away a lot can happen. Your family members could have moved or died themselves and most likely have become untraceable – when this happens the only way to trace them is through their ID numbers or date of birth. Its also important to note that the Master’s office doesn’t know you or your family and deal with millions of people with similar or exact names and need proper clear identification. Clarity and intention are the number one thing looked at by the courts and the Master’s office when a testator drafts a will and when they look at validity.

 

Q: what is the difference between the terms Testator and Testatrix?

A: The term Testator is the male name for someone who drafts a will, and a Testatrix is the female version. This is the same with the terms Executor and Executrix.

 

Q: Why is it important to date my will when it’s not legally required?

A: Although not legally required, its important to note that when there are more than one wills found at the time of one’s death, the only way to truly tell which will supersedes the other to see which one is most recent is by looking at the date. Again, Intention is very important in a will and your wishes may not be the same in every will that you draft throughout your life.

 

Q:  Can the witnesses who witness my will also be inheriting according to my will?

A: No, we tell clients to make sure the witnesses are independent people. This negates any arguments as to fraudulent activity.

 

Q: Can my Executor also be an heir?

A: Yes, this usually happens in cases where spouses make each other executors should the one of them pass away first then the surviving spouse becomes the Executor as well as the heir.

 

Q: Is it important to have separate wills if I have assets in another country?

A: Yes, it is important to separate your wills according to the countries you have those assets in. when you pass away the masters office where you reside will have jurisdiction over your estate and will request the original will, so if you have to request you estate to be wound up in a different country and they would need the original will you wouldn’t be able to receive that back from the master and its unlikely that the other country would only accept a certified copy.

 

Q: Why can’t spouses have joint wills?

A: It is legal for spouses to do joint wills, but they are extremely problematic. As mentioned above when one dies their original will gets sent to the Master’s office to start the winding up of the estate. Now when the joint will is sent because one of the spouses has passed away and that estate is eventually wound, the masters offices will put the file of the deceased spouse into storage. Now when the second spouse passes, and the master needs the original will it’s impossible to get that will back from storage and often times gets lost. We advise our clients who are couples to draft separate wills even if they state the exact same thing.

Q: Why do you want my address on the will?

A: Your address of where you resided at the date of your death indicates your residence or domicile and tells us and the masters offices which master will have the jurisdiction over your estate and where your papers should be lodged.

 

Q: I don’t want my partner to know that I am a will. Why must I disclose my marital regime?

A: Your marital regime will indicate how your estate will be wound up especially if your will for any reason is named invalid and takes on the route of Intestate Succession. The Master’s office often times will not even work on a file until they know how one is married and estates are most often queried based on requested documents. Therefore, even if you do not want your partner to know that you are drafting a will its important that we have that information.

 

A will is meant to be a voluntary and unilateral document which expresses the wishes of the Testator.

The will usually contains three things:

  1. The bequeathed assets;
  2. The extent of interest bequeathed in the assets; and
  3. The identity of the beneficiaries who would inherit such assets.

No will is valid however, unless it contains the following:

  • The will MUST be signed by the Testator or by a person in the Testator’s presence and by his direction;
  • If there is more than one page of the will, each page must be signed at the end by the Testator;
  • The signature must be done in the presence of two or more competent witnesses present at the same time of each other and the Testator;
  • If the Testator cannot sign the will and can only leave a mark it must be in the presence of a commissioner of oaths who certifies that he is satisfied to the identity of the Testator and that the will is that of the Testators and the commissioner must sign each page.
The Importance of having a living will

In light of wills week this month (16 to 20 September 2019) we thought we would highlight the importance of drafting a living will when drafting your last will and testament.

What is a living will?

It is a document in which you give instructions to your medical doctor and your family that in the event of a serious injury or disease, that renders you in a coma or in a vegetative state that you do not wish to be kept alive through artificial means.

Reasons Why You Need a Living Will:

  1. A living will speaks for you when you cannot speak for yourself. For example, if you are in a coma and there is no reasonable chance of recovery, a living will can state whether or not you wish to be kept alive through artificial life support.
  2. Having a living will in place spares your loved ones from making the decision for you. It will be up to you if you want to remain on life support. This will also eliminate family members from arguing about the decision, with regards to religious views or any other factors they might have over the decision.
  3. The living will also let you have a say in what medical procedures and organ donations that you may want. This is especially important for healthy individuals, as their organs can be harvested and used to give someone else another chance at life.
  4. The financial burden on your estate can be very draining, being on life-support, especially when there is no reasonable chance of recovery.  This is incredibly expensive. This might seem heartless putting a price on one’s life, but medical bills could be devastating for many families.

What a living will cannot state.

You cannot include instructions for euthanasia or doctor-assisted suicide in South Africa. You are entitled to request for specific treatments to be withheld or withdrawn, but you cannot ask a doctor to end your life.

How to draw up a living will?

Drawing up a living will isn’t time-consuming, and while you can do it yourself, it’s always best to have an attorney assist you with the process. Your living will should be accessible, so it’s advisable to inform your family and your medical practitioners of your living will’s location and give them copies.

As with many things in life, people change their minds and we always recommend that you review both your Last Will and Testament and your living will on an annual basis or if your circumstances have changed.or any queries contact, Charmaine Schwenn on 031 – 003 0630 or email – charmaine@schwenninc.co.za so that we can assist you in drafting both your will and living will.

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