Emilia Mulunga

We live in unprecedented times – anxious times; strange, dark and difficult times. The recent surge in the Covid-19 pandemic across the country has reminded all of us that a return to “normal” is far from imminent. The public health and economic crises caused by the pandemic have had many secondary effects, one of which is that we have all been reminded of our own mortality. For many people, this has sparked a renewed and urgent interest in estate planning, including creating, updating and/or finalising their estate planning documents.

For those who have been holding off on estate planning, the uncertainty of the current moment should serve as motivation to act. Without an estate plan in place, an incapacitated individual will be faced with the unpleasant prospect of having state law and probate courts determine who will be responsible for their financial affairs and healthcare decisions. A thoughtful, up-to-date last will and testament, on the other hand, provides peace of mind for you and your loved ones, allowing you to control where your assets go when you have passed.

As Covid-19 continues to force us all to consider our own mortality as well as that of our loved ones, it hammers home the importance of having a will and ensuring it is up-to-date with our wishes.

Ensuring your wishes and/or are recorded effectively 

When preparing your will, you can choose, not only to leave your estate to the beneficiaries of your choice, but you can also leave legacies (fixed sums of money) or specific gifts or possessions (anything from jewellery to a sentimental book) to a variety of named beneficiaries. You can also name who you wish to deal with the administration of the estate, the executors, to act in accordance with the terms of your will.

What happens whem you die without a last will and testament? 

In the absence of a valid will, your estate will be distributed in accordance to the rules of intestate succession. This means all those closely related to you will benefit from your estate, depending on the degree of relationship.

This can be an incredibly difficult, expensive and a drawn-out process, alongside what may often be an already difficult time of grieving. It is important to consider that the law may not make provisions for your loved ones in the way that you intend; therefore, formalising your intentions is particularly valuable.

Guardianship of your minor children 

If you did not appoint a guardian for your minor children, they might suffer because there is no one to care for them. Within your will, you can appoint guardians for your minor children should the unfortunate situation arise that there be nobody at your death with parental responsibility. 

Ensure your will is valid

If your will is not prepared and executed correctly, it may ultimately be deemed invalid. At the very least, this can result in the failure of a specific gift; however, there is also the risk of an individual’s wishes not being implemented on their death, or of unnecessary litigation if a will is not validly executed. So, it is important to get it right.

A Will must comply with the following requirements to be valid:

The will must be in writing. 

The will must be signed at the end thereof by the Testator, or any person in his presence or by his direction.

You must sign the will in the presence of at least two competent witnesses or confirm your signature in the presence of at least two competent witnesses.

Each page of the will must be signed by you and the witnesses in each other’s presence.

If you sign the will by  making a mark, a notary, peace officer, magistrate or commissioner of oaths must then certify it by signing the will on each page and attaching their certificate on the last page of the will. 

A witness must sign with their full signature and may not witness a will by only making a mark.

The testator and witnesses must sign each page. The last page must be signed directly underneath the last sentence on the page. There may not be a large space between the signatures and the last sentence.

It is not a requirement that a will must be dated but is important when you leave more than one will to determine which one is your last will. 

In order to avoid the burden and cost of determining distribution of assets in intestacy upon your family after your passing, it is always advisable to have a valid will, properly drafted and kept as a contingency.