A good number of people pass away without executing a valid Will, intestate, which is not advisable. Dying intestate poses the risk of the deceased estate being administered in a manner that is against what the deceased would have preferred. It also raises the possibility of legitimate and illegitimate ‘heirs’ battling it out (sometimes for years) in the Courts. Minor’s inheritance will be paid to the State (Guardian’s Fund) in the event that no guardians identified. All this can be avoided by approaching a Estate Planning Practitioner to assist in the execution of a valid Will. Please follow the link below for a brief discussion on the advantages of executing a valid Will.

Wishes of the Testator are Given Effect to –

As aptly as it sounds, the provisions in a Will represent the will (wishes) of the testator, unless it is proven that the Will was executed under duress/undue influence or coercion. A Will offers the testator an opportunity to prescribe how he/she prefers their estate to devolve, who the heirs shall be and what portions they must receive, when the testator passes away. In this way, the deceased “does speak from beyond the grave.”

The Golden Rule of testate succession is that the wishes of the testator must be given effect to, and this is the approach of the Courts where testamentary documents are challenged (Spies NO v Smith en Andere 1957 (1) SA 539 (A) and Katz and Another v Katz and Others (2004) 4 All SA 545). However, and despite the incidence of the golden rule as mentioned above, this privilege does not operate unfettered. Provisions of a Will must be lawful, not contra bonos mores and not be against public policy.

Reduces Court challenges

Something that is cast in stone usually comes in handy when disputes arise, unless there are grounds to challenge the validity thereof e.g in the case of Pillay and others v Nagan and others 2001 (1) SA 410 (D), the validity of a Will was successfully challenged owing to allegations of a forged signature on the Will. Also, the validity of a Will may be challenged on the grounds that it does not comply with the requirements in the Wills Act 7 of 1953. As was held in the case of Kunzs v Swart and Others 1924 AD 618, a party that is challenging the validity of a Will bears the onus to prove such invalidity.

Sometimes, the disputes that end up in the courts with regard to the administration of deceased estates, are about the legitimacy of heirs, the inaccuracy of the portions they received or that the Will was concluded under undue influence and therefore does not represent the wishes of the testator (Spies NO v Smith en Andere 1957 (1) SA 539 (A) and Katz and Another v Katz and Others (2004) 4 All SA 545). The reasons are diverse, and it remains advisable to seek the services of a legal practitioner to assist in the execution of a valid Will, whilst others also offer services to keep the Will safe.

Estate Planning

Executing a Will before a legal practitioner presents an opportunity for the testator to get as much information as possible in order to plan their estate effectively for the benefit of the heirs. Proper estate planning ensures that the testator is able to put effective measures in place towards the preservation of the assets in the deceased estate e.g not to be eroded by taxes.

Nominating the Executor

A testator may also nominate their preferred executor in the Will. This offers an opportunity for the testator to nominate someone whom they are confident with to preside over the administration of the deceased estate. The administration of a deceased estate must be conducted in a manner that is lawful and does not leave the heirs at a disadvantage. Due to the experience, skill and knowledge of legal practitioners, a number of testators prefer to nominate them in this role.

Legal assistance

Seeking the assistance of a legal practitioner in the execution of a Will presents immense benefits as has been shown above. While other testators prefer to keep their Wills in their homes, there is always a risk that an heir who stands to be disinherited may stumble upon the Will and destroy it, leaving the possibility of the deceased estate to be distributed according to the rules of intestate succession ever imminent.

In this Wills week, we as GB Inc. are participating as part of our social responsibility in the communities that we serve in. Kindly contact us to schedule an appointment for professional service. We assist in a wide array of matters including the drafting of Wills, contracts, family law litigation, general litigation, Road Accident Fund claims etc. Our approach is comprehensive and committed. Kindly contact us for further information and assistance.

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