1. Last Will and testament

    What is a Last Will and testament?

    A Last Will and testament is a legal document witnessed by two witnesses in which you say what is to happen to your possessions upon your death.


    What happens if you don’t have a Will?

    If you fail to make your will before you lose your mental capacity to do so or before you die, you will 'die intestate' (i.e. without a Will). This means that all the assets that form part of your estate at the time of your death will go to those family members and relatives - and in such percentages or amounts - as is determined by the intestate succession laws (i.e. The Intestate Succession Act No. 81 of 1987).

    As we can't see into the future it is important to make your Will as soon as possible. You could be involved in an accident that leaves you mentally disabled or cause your death. If you've not made your Will before then, those dearest to you might be left in a financial position you never intended. In South Africa we have 'freedom of testation', so you would be free to leave your assets to whomever you wish, even to your pet, so long as a provision is not unlawful, too vague, against good morals or impossible to perform.

    With a Will you can regulate not only how your assets are to be dealt with, who is to get it and when they should get it, but also who is to ensure that your testamentary wishes are carried out.

    Your last Will and testament is therefore one of the most important documents you will ever make and will have a lasting effect on those you leave behind. So, there is never a better time to make your Will than right now.

    Once you've made your Will you should reconsider it regularly, so that it will continue to provide for those around you according to your wishes as your circumstances change.


    Who should have a Will?

    Anyone who is 16 years old or older should have a Will.


    When should I update my Will?

    Most people's circumstances change over time and a Will is something that should also be updated in line with those changes – a bit like buying bigger clothes for your child as they grow up.

    These are a few major life events when most people would look to updating their Will:

    • If your marital status changes
    • If you sell anything that is left as a gift in your Will
    • If you buy something and want to leave it as a gift in your Will
    • If you adopt or have (additional) children
    • If you lose a child or children
    • If you move to a new country (you are likely to need a totally new Will in your new country of residence)
    • If the person you appointed as the guardian for your children needs to be changed
    • If your executors need to be changed
    • If you change your mind about the instructions contained in your Will

    Your Will is valid until you make a new Will (thereby 'revoking' the old Will), making a codicil (a separate legal document making minor alterations to your Will without the need to draft a completely new Will). Your Will can also be revoked by destroying it.

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Our law guide been prepared for information purposes only and does not constitute legal advice, or a legal opinion.

The practical application of the provisions of law guide articles will vary depending on the facts of each case. The publication, author of the article and companies or individuals providing commentary cannot be held liable in any way.

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