What you need to know about wills

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Did you know that the #1 reason South Africans don’t have a will is procrastination? Yet many of us find time for leisure activities and other things! A recent survey by Capital Legacy showed that 37% of respondents who didn’t have a will attributed it to lack of time, followed by 18% believing they didn’t need a will, and 12% saying they didn’t know where to get their will drafted.

When drafting your will, it’s important to get the basics right to ensure it is valid and that there are no issues or disputes when the time comes to carry out your final wishes.

Wills 101

To ensure your will is valid in South Africa, it must meet these requirements:

• The person making the will (testator) must be 16 or older.
• The will must be physically signed in wet ink, in other words pen on paper – not electronically.
• Each page and the end of the will must be signed.
• Two competent, independent witnesses must also sign the will, being present at the same time as the testator.

Who can witness a will?

Witnesses must be:

• At least 14 years old and of sound mind.
• Not mentioned in the will as executor, trustee, heir, legatee, or beneficiary.
• Not the spouse of anyone named in the will.

3 things you probably haven’t considered (but should!)

1. Trusts for minor children: If you have young children, consider setting up a testamentary trust in your will. This allows you to appoint a trustee to manage the inheritance on behalf of your children until they reach the age that you specify in your will. In South Africa, minors cannot inherit directly, so a testamentary trust ensures that their inheritance is managed responsibly and according to your wishes.
2. How your antenuptial agreement affects your will: Antenuptial agreements dictate whether you’re married in or out of community of property, impacting the division of assets and debts upon your death.
3. Charitable giving: Consider leaving a portion of your estate to a charity or cause you care about. This is not only a meaningful way to leave a legacy but such bequests can also have tax benefits for your estate.

5 consequences of not having a will

1. The government decides the distribution of your assets according to intestate law, which may not align with your wishes.
2. Delays in settling your estate due to the absence of clear instructions.
3. Potential family disputes over asset distribution.
4. Unintended beneficiaries receiving your assets.
5. No provision for, or nomination of, preferred guardians for your minor children, leaving their future uncertain. (The same would apply to your furry children.)

How important do South Africans think wills are?

The Capital Legacy survey revealed that wills top South Africans’ to-do lists in terms of how they rank personal finance tasks:

1. A will
2. Medical aid
3. Retirement savings
4. Life insurance
5. Home and car insurance
6. Funeral plan

It seems many people do understand the importance of having a will, but procrastination remains a common obstacle to getting one drafted, with an estimated 70% of South Africans not having a valid will in place.

Let Wills Month be your reason to get your will drafted! You have the choice of an online, in-person or telephonic consultation – at no cost to you. ‘A well-drafted will is a powerful tool to ensure your wishes are respected and your loved ones are cared for after you pass away,’ says Craig Harding, Executive Director of Fiduciary Services, and newly-appointed CEO (effective 1 Jan 2025), Capital Legacy.

National Wills week takes place from 16 to 20 September this year. The Law Society of South Africa introduced this initiative to encourage the public to have their wills drafted with the incentive that participating law firms offer free will-drafting for a week. Capital Legacy has taken the initiative a step further by extending it to Wills Month that runs annually throughout September. Capital Legacy offers in-person, telephonic, or virtual will consultations. They also have an easy three-step online will-drafting tool for people who prefer to draft their own wills. There is no charge for drafting, amending, collecting, safekeeping or retrieval of a Capital Legacy will.