The truth of the matter is the following: Not having a will (or a valid one) at the time of your passing will, in all likelihood, have very little impact on you personally (for the obvious reasons). With that said, it’s your loved ones (and their loved ones) who will feel the effect.
The consequences however will not be devastating. It will not mean that your life’s wealth will be tied up in an elusive bank account which your loved ones will not be able to touch.
No, it is quite the opposite; your estate will devolve in terms of the laws of intestate succession. This set of rules, as infamous as they may seem, are not all bad. There are provisions placed in the Intestate Succession Act 81 of 1987 which ensure that those closest to you will receive your wealth, by means of a ranking system.
It is however the control element which is absent and which can, in certain circumstances, be vital.
In your will, directions can be given regarding, amongst other things, who is to receive what, who you appoint as the executor to administer your estate and who will be the guardian of your minor children. Provision can further be made for the establishment of a testamentary trust (should the need arise or should an already existing need be present).
There is however no use in preparing a will if the will is not valid in terms of the formalities set out in the Wills Act 7 of 1953. These formalities include, amongst others, ensuring that the will is signed at the end of it, having two or more competent witnesses attest and sign the will in the presence of the testator and of each other and ensuring that each page of the will, other than the page on which it ends, is also signed by the testator. It is important to obtain the appropriate legal advice when preparing and signing your will and it is equally important to ensure that your original will is stored in a safe and secure place.
There are only two things certain in life: death and taxes. Unfortunately, both are out of our control but at least with the former, its consequences and implications for our loved ones can remain firmly in our control should you have a clear succession structure encompassed in a properly drafted will.
by Julia Newdigate
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).