What you need to know about wills

It's worrying that an estimated 70% of South Africans don't have a valid will in place. According to a recent survey by wills and estate specialists Capital Legacy, the simple reason for this may come down to procrastination.

This survey found that, of the respondents who didn't have a will, 37% attributed this to lack of time, followed by 18% believing they didn’t need a will and 12% saying they didn’t know where to get their will drafted.

“A well-drafted will is a powerful tool to ensure your wishes are respected and your loved ones are cared for after you pass away,” explains Craig Harding, executive director of Fiduciary Services and newly-appointed CEO^* of Capital Legacy.

The consequences of not having one include:

• The government deciding the distribution of your assets according to intestate law, which may not align with your wishes.
• Delays in settling your estate due to the absence of clear instructions.
• Potential family disputes over asset distribution.
• Unintended beneficiaries receiving your assets.
• No provision for, or nomination of, preferred guardians for your minor children, leaving their future uncertain. (The same would apply to your “furry” children.)

So if you haven't drafted your last will and testament yet, it's essential to stop procrastinating.

Will drafting

When drafting your will, it's important to get the basics right to ensure it's valid and that there are no issues or disputes when the time comes to carry out your final wishes.

To be valid in SA, your will must meet these requirements:

• The person making the will (testator) must be 16 or older;
• The will must be physically signed in wet ink, in other words pen on paper — not electronically;
• Each page and the end of the will must be signed; and
• Two competent, independent witnesses must also sign the will, being present at the same time as the testator.

Who can witness a will?

Witnesses must be:

• At least 14 years old and of sound mind;
• Not mentioned in the will as executor, trustee, heir, legatee or beneficiary; and
• Not the spouse of anyone named in the will.

Three things you probably haven’t considered, but should:

1. Trusts for minor children: If you have young children, consider setting up a testamentary trust in your will. This allows you to appoint a trustee to manage the inheritance on behalf of your children until they reach the age that you specify in your will. In SA, minors cannot inherit directly, so a testamentary trust ensures that their inheritance is managed responsibly and according to your wishes.
   
   
2. How your antenuptial agreement affects your will: Antenuptial agreements dictate whether you’re married in or out of community of property, impacting the division of assets and debts upon your death.
   
   
3. Charitable giving: Consider leaving a portion of your estate to a charity or cause you care about. This is not only a meaningful way to leave a legacy, but also such bequests can have tax benefits for your estate.

Get your will drafted for free this Wills Month

Taking place from September 16 to 20 this year, National Wills Week is an annual initiative introduced by the Law Society of SA. It encourages the public to have their wills drafted by providing the incentive that participating law firms offer free will drafting during this week.

Capital Legacy has taken the initiative a step further by extending it to Wills Month, running throughout September. The company offers in-person, telephonic or virtual will consultations. It also has an easy three-step online will-drafting tool for people who prefer to draft their own wills.

There is no charge year-round for drafting, amending, collecting, safekeeping or retrieval of a Capital Legacy will. Speak to your financial adviser or contact Capital Legacy today.

This article was sponsored by Capital Legacy.

^{*Effective January 1 2025.}