5 MONEY
DAMAGING MYTHS ABOUT WILLS BUSTED
W
hen it comes to
Myth 2: ‘It doesn’t really matter if
however, while the marriage was
estate planning, we
my will could possibly be invalid,
dissolved by a divorce order in
still unfortunately
as my heirs can always apply to
2011, he did not amend his will. In
encounter many misconceptions
the court to validate my will.’
2016, the deceased then sent an
about the drafting and executing
An important judgement in this
email to the applicant confirming
of a last will and testament. In
respect was given in May last year
that if he died all his assets and
particular, there are five key myths
by the Western Cape Division of
investments should go to her.
about wills in South Africa that
the High Court, Cape Town, in the
urgently need busting to ensure
court case of Dryden v Harrison
with costs as the court was
that your wishes are smoothly and
and Others.
not satisfied that the deceased
successfully carried out, and that
The application was dismissed
The applicant, who was in a
intended this email to be his last
your loved ones are cared for after
romantic relationship with the
will and testament, as he did not
your passing.
deceased, sought an order that a
proceed to formally execute a will
will in the form of an email from
that complied with the necessary
Myth 1: ‘If I die without a valid will,
the deceased be accepted by the
formalities as prescribed in
my estate will go to the State!’
court as a valid will. This will was
the Wills Act. This goes to show
If you die without a valid
declared invalid by the Master
the importance of a properly
will, then the Intestate Succession Act will regulate who the beneficiaries of your estate will be.
as it did not comply with the
executed will.
formalities stipulated in the Wills Act. In certain instances, a court may order the
Myth 3: ‘It will be in order if I sign my will today and let two witnesses sign tomorrow, as I do
The beneficiaries
Master to accept a
not have two witnesses with me
may include a
document as a valid
right now.’
spouse, biological
will even though
In a South Gauteng High Court
children, adopted
the document does
case, Karani v Karani NO and
children, parents or
not comply with all
other blood relatives
the legal formalities.
as determined by the
However, the court must
applicable clauses of the Intestate Succession Act. It’s only when there is a total
be satisfied that the document
Others, the will of the deceased did not comply with the specific legal formality that a will must be signed by the person making
was drafted or executed by the
the will in the presence of two or
person who subsequently died, and
more competent witnesses. These
lack of beneficiaries that your
that the deceased person intended
witnesses must also sign the will in
estate will devolve upon the
the document to be his or her will.
the presence of the person making
Guardian’s Fund (Master of the
The deceased in the Dryden
the will, and of each other.
High Court), and if it is unclaimed
case had previously executed a
after a period of 30 years, it will be
will in 2006 that bequeathed his
two witnesses did sign the
forfeited to the State.
estate to his then-spouse. Notably,
contested will. However, the first
18
SILVER DIGEST // SUMMER 2020/2021
In the case of Karani v Karani,
