Authored by Jordan Harris
In South Africa, unlike other jurisdictions, we enjoy the privilege of freedom of testation. This allows us to choose to whom and how we wish to bequeath our estate after we die. Individuals work hard and act cautiously in order to build up and protect their estates. They want to enjoy the benefits of their labour and ultimately, provide for their families.
It seems reckless to undo all that hard and demanding work by having not concluded and finalised an up-to-date Will, which in turn will give protection and welfare to your dependants and family when you are no longer with them.
The Intestate Succession Act caters for those who die without a Will, however, as we are all different and as our circumstances differ, a one-size-fits-all formula cannot adequately address our individual requirements.
One is restricted slightly in that the instructions given in one’s Will may not give rise to unlawful consequences and may not conflict with prevailing legislation. One important restriction is that a testator cannot leave his children or surviving spouse without maintenance if they have insufficient means to live by themselves as they are protected by the Surviving Spouses Maintenance Act.
Some advantages of having a valid Will
As the testator of your own will, you have many advantages:
- You can hand-pick your beneficiaries, taking into account the nature and scope of your estate and your family’s needs. You also do not need to limit your selection to your family. You can also nominate your own executor.
- You can choose which assets and to what extent or value of your assets to leave to various beneficiaries. You may want to bequeath specific items and amounts to different beneficiaries. With intestate succession, when you die, your beneficiaries will be entitled to a fixed and equal proportion of your estate.
- You can nominate an alternative beneficiary if for some reason the first nominated beneficiary cannot inherit due to any circumstances. Moreover, you are able to create a testamentary trust which will in turn allow you to cater for your minor dependants.
In an abundance of ways, a Will is the most important legal document there is. Without a Will, a lifetime’s work could be undermined and your otherwise carefully constructed commercial and legal safeguards could be null and void. In addition, your dependants, family and beneficiaries are likely to suffer the hardship of an uncertain financial and legal future because of the inevitably long delay in winding up your estate.
It is good practice to have your Will reviewed at least every three years as much can change in a short period of time.