A will is the one document no one thinks they need – until they do. Too few South Africans ever pause to consider the implications of not having a will in place when they pass away. The consequences can be dire. Families already dealing with grief may also be faced with undue financial pressure, mounting emotional strain and the possibility of ongoing disputes.
The words: “my family knows what I want,” may sound reassuring. But even the most open conversations and verbal agreements do not constitute a legal will, and good intentions are no substitute for a formal estate plan. What feels obvious today may become surprisingly complicated when you’re no longer there to explain it. Taking the time to plan now can provide clarity when it’s needed most.
1. Without a valid will, the law decides how your assets are distributed
One of the fundamental principles of South African succession law is freedom of testation. This means that, within certain legal limits, you are generally free to decide who should inherit the assets that form part of your deceased estate and on what terms. A valid will is the primary mechanism through which these wishes are recorded and given effect.
If you die without a valid will, you lose the opportunity to make those choices yourself. Instead, any assets that devolve through your deceased estate will be distributed according to the default rules contained in the Intestate Succession Act. These rules prescribe who inherits and in what proportions, regardless of your personal preferences or family circumstances.
While certain assets, such as retirement fund benefits and policies with valid beneficiary nominations, may pass outside of a will, a valid will remains essential to ensure that the assets falling within your estate are dealt with according to your wishes rather than according to a statutory formula.
Having a will, however, is only the first step. A will that does not comply with the formal requirements of the Wills Act 7 of 1953 may be declared invalid, with the result that your carefully considered wishes cannot be implemented. The Act prescribes, amongst other things, how a will must be drafted, signed and witnessed. While these requirements may appear straightforward, seemingly minor errors can have significant consequences and may ultimately result in your estate being administered as though no will exists.
Equally important is ensuring that the will can be located when it is needed. Even the most carefully drafted will cannot be executed if the original document cannot be found after death. Delays, additional costs and uncertainty for surviving family members often arise when time must be spent attempting to locate a missing will or to prove the validity of a copy.
For these reasons, the drafting and safekeeping of a will should never be treated as a mere administrative exercise. A will should be prepared with the assistance of a suitably qualified and experienced professional who understands both the legal requirements for validity and the practical implications of the administration of your estate.
2. Remember that it’s about more than your assets
When most people think of what writing a will entails, their assets are often the first thing that comes to mind however, it involves so much more. A will is about protecting the people who are left behind and making your wishes clear, so they are not left to make difficult decisions without your guidance.
Broadly speaking, a will can consist of instructions and arrangements for how money, possessions and other personal affairs should be distributed, managed or handled after death.
This could also include funeral or burial wishes, how personal belongings with sentimental value should be stored or passed on and what should happen to a business, whether fully or partially owned.
Additionally, there are also human interests to consider, including the care of dependants or details regarding the guardianship of minors. With the support of a financial adviser, you will be able to think beyond the obvious financial considerations, ensuring that important details and arrangements like these don’t get overlooked.
3. Make sure your will keeps up with your life
One of the most common misconceptions about having a will is that once it has been drafted, the job is done.
However, changing circumstances, evolving relationships, the acquisition of new assets or the need to make alternative arrangements requires your will to be updated. Even if your wishes or your estate remains unchanged, it is important to review your will regularly.
It is therefore helpful to think of a will as a living document, rather than a once-off exercise. Part of managing your life responsibly should include at least an annual review of your will, in the same way as you may relook an insurance policy or investment strategy.
Seeking professional guidance
Speak to a trusted financial adviser who will help ensure all the necessary requirements of your estate plan are met, giving those you leave behind the clarity they need to move forward.
Written by Mariska Redelinghuys, Employee Benefits and Fiduciary Specialist at PSG Wealth