Being certain in all this uncertainty

With all that is happening globally with the Covid-19 and the National lockdown in our country, it’s hard not to think about the importance of safeguarding our future, you find yourself really asking the hard questions – “How can I financially protect my loved ones in my absence?”

Unfortunately, this article will not provide you with all the answers, but it will guide you in the right direction as it deals with the basics surrounding the validity of a will and what can be provisioned for in a will. 

What is a will? 

Wills are often seen as a tool for the wealthy and those with lots of assets to their name. However, in truth, it is simply a legal document that sets out a person’s intentions and wishes when it comes to dealing with how their assets, be it cash or property of any value, should be distributed after one’s death.  In most cases, wills are there to: (i) minimize family fights that may arise when determining who may benefit from your estate (“beneficiaries”); and (ii) avoid distributing property to people that you would ordinarily not want to receive any benefit. 

That said, a will should not be considered as an opportunity to control your loved ones from the grave.

What can you include in your will? 

As a person drafting a will (“testator”), you are free to include any of your assets, although this is not absolute, there are legislative limitations to one’s freedom of testation, such as, (i) the Pension Funds Act 24 of 1956 where certain benefits paid out by a pension fund are excluded from the estate of the deceased member and (ii) the Maintenance of Surviving Spouses Act 27 of 1990, which allows a surviving spouse to claim reasonable maintenance needs in so far as they are not able to provide therefor from their own means. 

Your will should also include who your selected beneficiaries are. There is no law  that restricts your beneficiaries to your immediate family such as your wife, husband, children, parents or siblings, instead the freedom of testation means that you have the right to appoint anyone as a beneficiary, including but not limited to an organization, a company, a trust or even friends and strangers.

However, freedom of testation is not without limitation. Accordingly, there are also certain provisions in a will that may not be carried out by the executor of your estate.  These include provision(s) that may be:

  • unlawful; 
  • against good morals; or 
  • impracticably vague and impossible. 

These limitations are important for purposes of ensuring that there is no abuse of power.

What if I do not have a will?

South African Law provides for mechanisms to assist with administering estates in accordance with the laws of intestate succession; however, an in-depth discussion on this area of law falls outside the scope of this article. It is however critical to ensure that all aspects that you would address in your will are in compliance with the Wills Act in order to ensure that your family’s financial future is secured, which will subsequently reduce potential conflicts with regards to the distribution of your estate.

For peace of mind and to ensure that your family is well taken care of, it is best to have a will in place.  Knowing that your family’s financial future is secured, surely, you’ll be able to rest in peace.

Manopi Makwela, Associate, Tumbo Scott Incorporated.