Your Will in a Will - The Advantage of Certainty | Legal Articles


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Your Will in a Will - The Advantage of Certainty

There are two most common ways in which succession in a deceased estate may take place. Where the deceased passed away without a valid Will, the estate will be administered according to the rules of intestate succession as per the Intestate Succession Act 81 of 1987, this is known as successio ab intestato.

Where the deceased person executed a valid Will, succession will happen testamentary and is also known as successio ex testamento. Succession can also happen in terms of an agreement or contract.

In this summary, the advantages of testamentary succession will be discussed.

estate attorneys in Johannesburg

Last Will and Testament

Testamentary succession is centred around the execution of a Will, Codicil or other Testamentary writing containing the wishes of the testator on how the estate must be administered after the death of such testator.

The primary purpose of having a valid will is so that the testator can have the benefit of prescribing the division of his assets to only the beneficiaries he/she desires. In this way, having the assets of the deceased in the wrong hands after his/her death is avoided.

However, succession disputes cannot be avoided even if there is a Will in place. The validity of such a Will is sometimes questioned and contested by interested parties who feel left out or inadequately considered. It is important that a Will comply with the requirements of a valid Will as prescribed in the Wills Act 7 of 1953.

The Golden Rule of testamentary succession is that the wishes of the testator must be given effect to (if they are legal). In actual terms this means that the testator must have the intention to make a will and he must exercise this intention freely.

The other rules can be said to be subservient to this golden rule and are meant to give effect and support in achieving the golden rule.

Estate Attorneys South Africa

Firstly, the execution of a Will is an opportunity to choose the beneficiaries. In the case of Spies v Smith 1957 (1) SA 539 (A) the deceased executed a second Will, revoking the first one he had made appointing the two daughters of his stepmother as heirs. Upon his death the stepmother then challenged the validity of the second will on the ground that the testator had been unduly influenced to change the beneficiaries to be the children of his uncle with whom he stayed with before his death.

The Court ruled against this argument, and on appeal the challenge was dismissed. The case shows how central the aspect of “wishes of the testator” plays in testate succession. In Katz and Another v Katz and Others 2004 (4) All SA 545 (C) it was held that the mere fact that the testator had made a new will while dependent on his second wife when he suffered a stroke was not sufficient proof of undue influence unless ample evidence to the contrary is proven.

Secondly, besides choosing the beneficiaries, the testator can prescribe the terms and/or conditions attached to the inheritance. It is trite that these conditions must not be impossible. A testator can prescribe that a property’s title deed may be transferred into the beneficiary’s name when the beneficiary turns 21 years of age. Such a condition is not impossible, and not illegal.

Thirdly, executing a valid Will provides legal security and forestalls disputes between the surviving family members. Some Wills appoint the executor who is to oversee the administration of the estate.

Van Deventer & Van Deventer Incorporated – Estate Attorneys in Johannesburg

Not only will the Will make it clear about who is to benefit, what to benefit, but also about who is to oversee the process thereby reducing any squabbles to naught in a good number of cases.

The execution of a Will is one of the best ways to secure the wishes of the testator on how their estate must be administered after they pass away. We can assist you to achieve this.

Contact us for expert legal assistance.

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