By Dr. Eugene Brink
National Testaments Week took place from 7 – 24 September 2019 and Solidarity World spoke to a legal expert about the nitty gritty of these most important documents.
“A testament is a legal document in which you set out your specific wishes regarding how your assets should be distributed,” says Petro Voges, director at Hurter Spies Incorporated in Pretoria. “There is no prescribed format for the content of your testament, but there are some essential clauses that need to be included.”
She sets out these clauses as follows:
- Firstly, it is important to write down your personal information – in other words, full names, surname and identity number – in your capacity as the testator (male)/testatrix (female), therefore the person whose testament this is.
- Recall clauses: In this clause you recall all previous testaments made by yourself to ensure that your new testament is accepted as your last will and in so doing prevent any dispute regarding your testament from arising.
- Nomination of an Executor: Although you may nominate a family member as Executor of your estate, the Master of the Supreme Court will insist that the nominated Executor appoint an agent to assist the Executor with the administration of the estate, in the case where the nominated Executor does not have any experience in the administration of estates. Therefore, nominate a person who already possesses this experience.
- Bequest of assets: This is your opportunity to set out your specific wishes regarding the distribution of your assets. Consult an expert to make sure that the specific bequest of assets in your testament are in fact viable, otherwise it may mean that your bequest is not valid. Always remember that a testament is not regarded as above legislation, consequently you cannot bequeath anything that is regulated by virtue of legislation.
- In the case where minors are involved, it will be necessary to nominate a guardian, should a biological parent no longer be present. Consideration should furthermore be given to the establishment of a testamentary trust after your death to benefit the minors. One of the reasons for a testamentary trust will be to prevent the bequest to a minor being transferred to a Guardians Fund. It would be wise to contact an expert to investigate the possibilities of a testamentary trust.
“There are quite a few optional clauses that can be added to a testament, such as the extended powers of the executor, exclusion of community of property. Collation (bringing in) and special wishes regarding your funeral and/or cremation,” Voges says.
The risk of no testament
She says that should you not possess any testament, you will die intestate and your estate will be administered by virtue of the Intestate Succession Act 81/1987. “In short, this means that after your death your assets, by a set of rules as determined by this Act, will devolve, beginning with your spouse, descendants, parents, brothers and sisters and/or their descendants and finally closest next of kin. If no-one can be traced, your assets will after a period of 30 years be bequeathed to the state.”
She warns that the risk may arise that your assets will not be bequeathed according to your wishes. “An Executor will be appointed who might not necessarily be your choice. Minors’ inheritance will be paid over to the Guardians Fund, after which the minors will only be able to claim their inheritance on becoming 18 years of age. Each of you have worked hard for everything you own today, whether it be a property, car of just a bank account. Why not ensure that your assets are bequeathed according to your wishes after your death?”
When is it valid?
The validity of a testament is determined by virtue of the Testaments Act 7/1953 and for a testament to be valid the Act stipulates that it should be in writing. “It may be written by hand or typed. Just be aware that a verbal testament or a videotape will not be valid.
“The testament must furthermore be signed by the testator/testatrix at the end of the testament. If the testament comprises only one page, only that page needs to be signed. If it consists of more than one page, every page must be signed. The testator/testatrix must sign the testament in the presence of at least two witnesses.”
Voges states that although the witnesses by virtue of the Act need only sign on the last page, legal practitioners however request that the witnesses sign on every page in the presence of the testator/testatrix. “Always remember that a witness may not be a beneficiary in your testament. The Act does not specify that the testament must be dated, but in practice we do date it to be able to easily determine which testament was your last.”
How often should you have it revised?
A testament is a document that should be revised on a regular basis. “With every occurrence that takes place in your life – whether you marry, the birth of a child, the death of a family member, the purchase of fixed and/or immovable property or divorce – you have to revise your testament and make sure it still reflects your wishes. Don’t let your testament gather dust,” Voges concludes.