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Death is not a subject we feel comfortable talking about, although the only 2 things we can be certain of in life are death and taxes! It is, however, something we should prioritise for our loved ones’ sake because that is the people it will affect in the end. Having a last will in place is the best way to ensure that you are in control of what happens to your life’s work after you pass away.

What Happens If You Die Without A Will in Place?

In the case of passing away without a Will in place, your estate (the assets you owned at the time of death) will be distributed in terms of the Intestate Succession Act 81 of 1987 which is also known as the Rules of Intestate Succession.

The Act aims to distribute the deceased estate to close relatives first (in a specific order). For example, the rules firstly benefit the spouse (not including a partner in a cohabitation relationship) and in the case of there not being a spouse, the deceased estate will be shared in equal parts by the children. In the case of the deceased not leaving behind a spouse or children, the parents, siblings and uncles and aunts will inherit the estate.

Various scenarios are made provision for, but in the end, it still means that you do not have any control over who will inherit from your estate if you die without a Will. This might lead to instances where someone may inherit even if you may have never wanted those persons to benefit from your deceased estate.

What Happens If I Had A Will, But Failed to Update It?

Having an outdated Will is almost just as dangerous as not having a Will at all. If you fail to update your Will, people with whom you no longer have relationships with may inherit from your deceased estate. It is important to revise your Will with any significant life events, such as marriage or the birth of children, and also when your wealth increases or decreases. Also after a divorce, if you do not update your will in 3 months, it will be assumed that you wanted to include your spouse in the Will and the spouse will inherit in terms of the Will.

Amendments to a Will are regulated by Section 2(1)(b) of the Will Act. Amendments include any deletion, addition, alteration or interlineation. Should you wish to delete your entire Will, this will amount to revocation and the requirements of Section 2(1)(b) of the Wills Act will not apply. A Will may be revoked by the execution of a new Will which expressly revokes the former, or through the destruction of a will with the accompanying intention of revoking it.

The importance of an updated expertly drafted Will cannot be stressed enough.

Do I Need A Will If I Am Single?

The short answer is, yes! If you earn a salary, have savings in the bank, own a few personal belongings, furniture, possibly a car, you should consider having a Will drawn up. The same goes for when you are involved in serious relationships and live with your partner without getting married. After years of planning for the future and making financial decisions together, these couples often only realise the importance of a Will when it is too late. With no Will, one often sees the surviving partner left in a disadvantaged position.

What Does Freedom of Testation Mean?

The freedom of testation implies that you may revoke or alter your Will at any time before your death. The principle of freedom of testation is rather liberal as it grants the testator extensive power to draft a will which directs how the estate’s assets must be distributed upon death. There are several common law limitations to the freedom of testation. For example, a provision of a Will cannot be exercised where it is unlawful, against good morals, too vague, or impossible to perform. Additionally, the minor children of the deceased have a common law claim to maintenance. Specific legislation may also limit one’s freedom of testation, for example, in cases where pension funds, trust property or spousal maintenance are concerned

Why Should I Seek Professional Advice When Drawing Up A Will?

Every person’s circumstances are different, and it is important to consider all legal and financial implications when making decisions. Numerous technicalities may be important when considering the administration of one’s estate and the requirements for drafting a valid Will.

Although the requirements for drafting a valid Will are relatively straight forward, even a seemingly meaningless oversight may invalidate the entire document. The court is given the power to condone a will that does not comply with all the formalities to try and avoid situations that may invalidate a Will and frustrate the testator’s good intentions. Nevertheless, it is always advisable to abide by all the requirements to avoid any complications and delays.

If you need drafting a last will or make any changes to your existing Will, feel free to contact us for professional assistance.

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