How to have your last wish respected: writing a proper will

How to have your last wish respected:

writing a proper will

By: Beaven (Llb, Llm Sa)

We are living in perilous times, life is so uncertain because of the COVID-19 pandemic. People are dying at a mesmerizing rate and we cannot say who will be next. It is imperative, therefore, that every person be prepared for the worst. It is not lack of faith to write a Will, it is called preparedness and it is important for every one of us to do due diligence into how proprietary matters shall be handled after our demise. Whereas it seems intimidating, unpleasant or even scary to most people to draw a Will, a Will is your last wish that you intend to have respected after you are gone, as such, the Will has to be written in a manner that will make it acceptable and legal. There are certain Wills which will not meet the required legal set standard to the extent that the deceased will be rendered intestate.

A Will is a legal document which is drawn by a person while they are still alive (inter vivos) and is intended to give an instruction to the beneficiaries of the person who draws the Will. This person who draws the will is called a testator. The will can thus be called the last will or testament of the testator. The Will only works when the testator dies. It is of paramount importance that the Will should be clear and concise because it will be difficult to execute an instruction that even the beneficiaries of the deceased estate do not understand. The Will gives certainty to the identity of the property left behind by the deceased. This means it will be easy for the beneficiaries to know exactly what the deceased left, what was his property.

Any person aged 16 and above in his right faculties, meaning a person who is not mentally challenged, intoxicated or drugged can make a will. No gender is discriminated, both male, female and the transgender can make a will. Normally, and particularly among Africans, if anyone will write a Will then it will be a man, to protect his property and direct its distribution, but, even women should be encouraged to write Wills. If there is need for a minor to write a Will then it must be done through their legal guardians and filed of record with the High Court as the upper guardian of all minors.

The Will should be drawn to distribute property that is owned by the testator, whether in undivided shares as

in the case of people married in community of property or any other property owned by the testator. It is therefore illegal for the testator to distribute property that does not belong to them in their Will. The testator should be able to state who the intended beneficiaries are, but of course this will be put into the two broad categories of heirs and legatees. An heir is that beneficiary who will take a share of property allocated to them after the expenses for example the funeral and every other creditor of the deceased has been paid, whatever remains will be distributed among the heirs. The heirs therefore have to be specified. Legatees on the other hand are those beneficiaries who do not wait for any expense or creditor to be paid, they have a specific item/s allocated to them for instance, the White Mercedes Benz ML500 goes to my nephew, Peace. So in this case, Peace will be legatee and gets the car before the heirs inherit.

It is critical in this regard to take note that if the testator has got a marriage in community of property, he must not distribute property that is jointly owned, as though it were his, in toto. The testator will also protect the interests of under aged beneficiaries by including them in the will. The other issue which usually caused people headaches were to do with children born out of wedlock, whether from the maternal or paternal side. If one marries a woman who has her own child/children those children have got a legal right to inherit from their mother’s estate. An estate means all the property or finances that a person gathers during his lifetime, that which is left behind by the deceased is called the deceased estate. Beneficiaries are those who benefit from the deceased estate. From a parent, descendants, meaning children and the surviving spouse/s are legally allowed as heirs. If there are no children and surviving spouse/s, the parents of the deceased may inherit. Under no circumstances may siblings or parents of the deceased person inherit ahead of the deceased’s children and surviving spouse/s. This is important to know when one is drawing up a Will, so that the it will be legal so that it will not be nullified or contested.

If there is anyone who is not contend about the Will, they may contest the Will of the deceased person in the High Court. The High Court will hear the matter and determine the verdict. This means that some of the wishes of the deceased may be changed by the court for instance where a husband who was not in good books with his wife or children dies and leaves all his estate to his young brother. This can be successfully challenged in a court of law.

So, you have drawn up your Will, where do you keep it? A will can be kept by your lawyer, banker, yourself or a friend. The most important thing is that the formalities for making the will have been adhered to and that the will is registered with the Master of High court. One of the most fundamental aspects of a will is that it should be signed by the testator at the end. Two witnesses shall attest the will by appending their signatures in the presence of each other and the testator as well although they do not have to read the contents of the will. Every Page of the will should be initialed. If the Will is not signed by these three in the prescribed format the will is null and void. If therefore Dimagatso writes a will and signs it alone or with one witness, then keeps it under her mattress in her bedroom, when she dies, she will be rendered intestate because the proper procedures of Will writing were not followed.

In the Will the testator should appoint an executor of the estate (Executor testamentary), but if she fails to appoint the executor the Master of High Court will convene and edict meeting wherefrom an Executor Dative is appointed. The executor operates in the shoes of the deceased; she is the manager of the deceased estate. She pays the expenses of the deceased and she distributes the property to the heirs and legatees. Her job ends when all debtors and creditors have been cleared and the legatees and heirs paid.

It is therefore very important for every person above the age of 16 and with some property to protect to draw up a will. The person has to be in their normal faculties and not under influence of drugs, intoxication or mentally challenged You can draw the will yourself or use the expert services of a lawyer so as to avoid mistakes of content.

In the next article, I will explain more about Wills and codicils, inheriting per stirpes, qualifications of an executor and letters of administration. billy.bliss@live.com