Article contributed by Durban Law Firm: Fawzia Khan & Associates
In making out a will, a person can leave his or her estate to pretty much any person. You don’t need to give your assets to your children or even your spouse should you choose not to. It’s called freedom of testation.
There are however some limits to this freedom. The testator is required to maintain his or her minor children. The obligation to pay maintenance for minor children ranks immediately after payment of creditors and before any special bequests or legacies are made. A surviving spouse can also have a claim against the estate for maintenance.
A will cannot contain a provision which is illegal or one which is against public policy. Creating an enforceable or vague condition in a will could render that particular provision in the Will to be disregarded.
An executor is the person appointed to deal with the distribution of and administer the estate. Prior to appointing the executor, the Master of the High Court will require the executor to put up security and will only dispense with security when the testator states so in the Will.
A legacy or bequest is something specific which a testator bequeaths to a person (“the legatee”).
An heir is the person who will receive the residue of the estate after all debts and legacies have been distributed. A person nominated as an executor or heir is not allowed to sign the Will as a witness.
The Wills Act sets out the requirements for a valid will and there has to be strict compliance to the Act. The onus of proving a Will is invalid is on the person making that allegation. If a Will is rejected by the Master, the estate of the person will then be administered in terms of the laws of intestacy, (as if the deceased never left a will). The Master may declare the estate to be partial intestacy, perhaps if the deceased didn’t deal with all of his assets or if a beneficiary renounced his rights.
A joint or mutual Will is usually made by spouses, however any two persons can make a joint Will. Massing is when two people decide to join their estates into a single massed estate. It could be either a portion or the whole of their respective estates. In law, there’s a presumption against massing. The survivor must agree to accept the massing (called adiation) or reject the massing, (called repudiation).
A “Living Will” provides specific instructions that if due to grave illness or disability, a person is unable to provide informed consent, that the person refuses to be kept alive through artificial means. Having a valid Will is important and it’s also crucial to make sure you update your Will regularly to take into account changes in your life, relationships or even your job.
Speak to us about updating or drawing up your Will.
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