Article by listed attorney: Fawzia Khan
A will is a legal document, which stipulates how upon your death, your assets and possessions will be distributed to your beneficiaries and heirs. When you make a will, you are referred to as the "testator" if you are a man, or "testatrix" if you are a woman. The legal requirements for having a valid will is that you must be of sound mind and at least 16 years old. The will must be in writing and signed by you and two witnesses. Any person over the age of 14 can witness a will. The will must state that it is your "last will and testament." A will should also nominate who will be appointed as the executor or executrix. The function of the executor is to ensure that all the terms and conditions of your will are complied with.
Our law recognizes the principle of “freedom of testation”. This means that a person has the freedom to decide who gets his wealth and possessions. A testator can bequeath his entire estate to his favorite charity rather than to his children, if he so wishes. If you die without leaving a will, you will be regarded as having died intestate. Your estate will then be divided according to the laws of intestate succession. The danger is that this may not be the way that you would have wanted your property and assets to be distributed.
The laws of intestate succession are very specific as to who will inherit from an intestate estate. It’s very likely that persons whom you may not want to inherit your property will then be allowed to do so. It’s recommended that a will be revised after any changed circumstances such as a divorce or birth of children or grandchildren. Our law says that if you obtained a divorce from your spouse but did not update your will within 3 months, your ex-spouse will be entitled to inherit in terms of your will.
Know your rights! Email fawzia@thelawdesk.co.za or call 031- 5025670 for any legal assistance.
