Despite the grief and heartache which always accompanies the loss of a loved one, death can often lead to unnecessary legal ramifications and disputes surrounding ill-drafted wills and testaments.
A will is intended to evidence the wishes of a person regarding the devolution of their assets at a time when they are no longer able to do so themselves. Yet, many South Africans share an ignorance of the formalities and technicalities involved in drafting a clear and valid will.
The cost of this ignorance is great.
Recently, the late the passing of South African rugby great, Joost van der Westhuizen, highlighted this cost as it emerged that the Master of the High Court – responsible for the scrutiny of contested wills and subsequently the execution thereof – refused to accept van der Westhuizen’s will.
The decision came down to the fact that van der Westhuizen had been physically incapable of signing the will due to his debilitating disease and thus rendered the document invalid.
Additionally, van der Westhuizen neglected to follow procedures allowing him to validate his will without the need of a physical signature.
The absence or invalidity of a will can lead to the devolution of assets intestate. Simply put, the government takes control of the decision to allocate the estate in question to the parties it deems most fitting, irrespective of the deceased’s intentions.
In van der Westhuizen’s case this would mean a devolution of assets shared between his children and his ex-wife, whom he had not legally divorced.
In most cases, then, small technicalities may lead to continued legal dispute between family members and costly litigation expenses.
So how can you avoid leaving an invalid last will and testament?
Simply in three steps.
- According to the Wills Act (no.7 of 1953), A valid will is recognised as such, when the person signing it understands and appreciates the legal consequences of signing the document.
- Similarly, when the person signing it did so freely, without duress or undue influence, and when the formalities prescribed in the Wills Act were compiled within the execution of the will.
- Often enough, however, the most viable way to ensure the validity of a will is to seek the guidance of qualified fiduciaries who are well versed in every prescription and rescue provision of the Wills Act.
Should you have gone through the trouble of garnering a legacy for your children and children’s children, the smart and sensible thing to do is make sure that a clear and legally complimenting document exists which respects your final wishes and lessens the heartache.