INTRODUCTION INTO THE CONCEPT OF WILLS

Have you thought about life after death? Do you have an updated will?

If your answer is no then you need to read this article. 

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You have probably heard stories about families fighting over the assets of a late family member or a loved one. You probably think your family is unified by strong family bonds and would never fall victim to the same conflict.

You could be right but are you willing to take that risk?

 

An article written by IOL News in 2017 stated that 70% of the working class do not have a will. https://www.iol.co.za/business-report/70-of-south-african-working-population-dont-have-wills-do-you-really-need-one-11212995

What is a will?

According to De Groot,[1] a will is a “unilateral, voluntary expression of the wishes of the testator in legally prescribed ways that determine what must happen to his property after his death.” 

Simply put, a will is a document where a person expresses his wishes as to how his assets must be divided, identifying who must benefit in those assets after his death.

The concept of creating a will seems straight forward, however, like any formal and legal document, a will must comply with the formalities of a valid will otherwise it becomes defective. An invalid will is tantamount to a non-existent will. Yes, if your will is defective then legally, it never existed. Because it has become common practice to use the phrase “invalid will” we will follow suit.

There are various factors which can cause a will to become invalid such as:

a. The will was drafted involuntarily or with undue influence.

b. Witnesses do not have the capacity to attest.

 

Does a will exist forever?

Yes. Until such a time that the testator revokes the will. A will only takes effect upon the death of the testator and for that reason, it is possible to invalidate or amend it. Once a will is revoked, it loses its legal force. One would wonder, what happens if you accidentally revoke your will? As long as the will is not physically destroyed, it is possible to legally revive it.

 

Who can inherit?

a. Unborn children subject certain legal exceptions

b. Extra marital and adopted children

c. Spouses

d. Extended family

e. Parents and grand children

f. Any other person 

g. Statutory representation

 

The importance of attorneys when drafting a will.

In order for a will to become valid, it needs to comply with formalities. An attorney will assist you by ensuring compliance. At Mogotsi Attorneys we have a team of experts to assist you will all your will drafting needs.

National Wills Week (16-20 September 2019)

This week is dedicated to assisting lay people with creating wills and it is a chance for legal practitioners to donate pro bono services. Mogotsi Attorneys will be party to this eventful and fruitful week. It will take place on the 16 – 20 September 2019.

Which law governs the concept of wills?

The law of estate succession is the totality of legal rules governing the process of transferring the deceased’s assets which must be distributed amongst the beneficiaries.

 

Article written By: Boipelo Talakasi (Legal Assistant)


[1]  De Groot 2 14 4.