Procrastination is a very common problem amongst South African citizens when it comes to drawing up a last will and testament. Maybe it’s because they believe that they do not have enough assets, that there is enough time for drawing up a will or maybe it’s just that they simply do not want to consider their own mortality. In fact, maybe it’s because most South Africans do not know what a last will and testament is and what value this document holds.

A last will and testament is a legal document incorporating your last wishes and requests with regards to your assets and beneficiaries. In other words it is a legal documents that details how your estate should be divided when you pass away. A last will and testament will, inter alia, set out the following:

  • Who will inherit your property;
  • Who will be in charge of your estate as executor, to carry out its distribution;
  • The responsibilities and powers that your nominated executor will have in terms of your estate;
  • The manner in which your property will ultimately be transferred to your beneficiaries;
  • In the event of you leaving behind minor children, it will stipulate who is to serve as their guardian until they become adults

If you pass away without a Will, your estate will be distributed in terms of the law of intestate succession. The meaning of this is that your assets will devolve in terms of the Intestate Succession Act, which Act identifies the beneficiaries who are entitled to succeed to the deceased estate, and the extent of the benefit/s they are to receive from the deceased’s estate. This may cause beneficiaries whom you may not have wished to benefit from your estate, to now benefit from your estate. It may also cause the exact opposite, in that the beneficiaries whom you wished to benefit from your estate, will now not benefit at all from your estate.

The best advice on intestate succession is to simply stay away from it!

Not only is it of vital importance to ensure that you have a last will and testament drawn up, but also that you have the said will drawn up by a person who possesses the necessary knowledge and expertise to draw up your will. It would be advisable to have a law firm assist you in drawing up your last will and testament. An attorney who specialises in estate planning will be best able to ensure that your wishes are fully incorporated in your will and that your will duly complies with the necessary legal requirements.

In conclusion, a very vital point is that once you, and your attorney, have gone to all the effort of drafting a will, ensure that you complete the process by signing the document and keeping it in a safe place. It is a common practice amongst law firms to only provide you with a copy of your will and keep the original thereof so that they can safely store same at their offices. In any event, nobody wants their last will to become their lost will.

Del Marco Matthee

Del-Marco Matthee

2nd year Candidate attorney