General Articles

The Importance of a Last Will and Testament

Posted at October 1, 2012 | By : | Categories : General Articles | 0 Comment

We are living in times where everybody thinks about preparing a Last Will and Testament. Most know that they will need a Will. Many intend to make out their Wills, yet surprisingly, most people never do.

Some are of the view that they do not need a Will as they do not have substantial assets. Others do not prepare wills for reasons that range from simple laziness to discomfort at the thought of one’s own death. For many, thinking about their own death makes the concept real. As long as they can avoid thinking about it, they can ignore the inevitable. Unfortunately, failing to plan for one’s death won’t prevent it from happening.

The only thing certain in life is death. With this in mind, would you really like to leave your assets for someone else to handle?

There are many reasons why you should have a valid Will at all times. It is important to ensure that, upon death, the right people should benefit from your Estate. Also, with a Will, you have the right and ability to appoint Executors of your choice.

By making and leaving a Last Will and Testament you are in a position to decide and instruct how your assets are to be distributed and dealt with after your death.  In this way,  you can ensure that only the people you choose will benefit from your  estate and you can accordingly exclude people that you would not want to benefit.  By making a will, you thereby ensure that the distribution of your estate would be in accordance with your wishes.

Should you however die without leaving a valid Will, your assets will be divided and distributed according to the Law of Intestate Succession as opposed to your own wishes and directions. Invariably, the distribution of your assets in this event will, in all probability, not be what you had intended.

If you decide at some stage of your life to dispose of and divide your Estate after your death, then you must make your wishes known in your Last will and Testament. The Wills Act regulates the formalities of drawing a Will and determines who may make a Will.

In order to execute a valid will, you must have the necessary testamentary capacity at the time of executing the Will. If this capacity is absent, then the Will is invalid. Every person of the age of 16 years or more may make a Will unless at the time of making the Will, such person is mentally incapable of appreciating the nature and effect of his act.

The mere fact a person has the formal capacity to execute a Will does not guarantee the validity of the Will. Any impairment to a person’s freedom of expression, like undue influence or duress, may result in the Will being invalid.

The valid execution of a Will means that all statutory requirements for the drawing up of a Will have been complied with.

The signing of a Will is the most important step in validating the Will. In terms of the Act, you must sign in full at the end thereof in the presence of two competent witnesses. If the Will consists of more than one page, then you and both witnesses must sign each page in the presence of each other.

If you cannot sign your name, then you are entitled to place a “mark” in place of your signature. A “mark” usually but not necessarily entails the making of a cross or the placing of a thumbprint. Should you place a “mark” or a thumbprint, then a Commissioner of Oaths must certify that he has satisfied himself of your identity and that the “mark” or thumbprint was placed in his presence and in the presence of the two competent witnesses. The Commissioner of Oaths must also sign each page of the will.

A competent witness is any person above the age of fourteen years who is also not incompetent to give evidence in a Court of law. It is important to note that the witnesses must sign in your presence and in the presence of each other.

Any person who is to receive any benefit under your Will, as well as your executor, trustee and guardian, including such a person’s spouse, should not sign as a witness as they would be disqualified to benefit.

The Wills Act provides that certain people will be disqualified from receiving any benefit from your Will. These include any person who attests and signs the Will as a witness, or  a person who attests and signs a will as a witness and is also the nominated executor, trustee or guardian, or  a person who writes out your Will or any part thereof in his own handwriting; and the person who is the spouse of such person at the time of execution of the Will.

 

It is therefore important to ensure that two independent people, who do not stand to benefit from your estate and who are not your appointed executors, sign as witnesses to your Will.

 

You will, in your Will, set out the manner in which you want your Estate to be distributed after your death. There are many ways to do this. You may want to provide that your Estate is to devolve in a specific manner. Or you may want your Estate to devolve in accordance with the tenets of Islamic Shariah. In the latter event, it is important for you to provide that a Certificate issued by the Jamiat, or any other recognised Islamic institution, will be conclusive proof as to the identities of your beneficiaries and the percentage proportion of their inheritance and benefit.

 

It is advisable to review and revise your Will at regular intervals, and particularly when you get married, or a child is born, or when you get divorced. When you marry, your existing will is not automatically cancelled. Divorce does not automatically cancel your Will either, but any bequests to a former spouse shall be void for a period of three months after the date of divorce, after which period such bequests become effective and valid again if the Will has not been changed.

If the will is not reviewed when circumstances have changed, it may result in unnecessary grief and also have severe financial implications.

It is therefore of utmost importance that you have a valid Will at all times. Apart from the fact that you can direct how your assets are to be distributed on your death, you will also be able to safeguard the assets for your heirs, arrange for your assets to be managed by a competent person on behalf of your minor beneficiaries until such time as they are old enough to deal with the assets themselves.  In particular, you can provide that the inheritance of your minor children be held in trust rather than being paid over to the Master’s Guardians Fund.

The importance of a Last Will and Testament cannot be overstated. A Will is arguably the most important legal document that the average person will ever sign. Many people  incorrectly assume this is solely the domain of the wealthy. A Will directs the distribution of property at death. Under this logic, presumably those with limited property think they need not worry about how it will be distributed. This is a mistake. Regardless of how much or how little property someone has, a Will gives that person control over what happens to this property.

Don’t wait until it’s too late. Make the necessary preparation to take care of the ones you care for. Make your Will today.

 

 

 

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