Talking about death is a subject that most avoid as it creates fear and uncertainty. We would much rather live like we are guaranteed a tomorrow. Without sparing a thought on whether or not we should put our affairs in order were it to be our last day.

Imagine living with your partner, the love of your life for the past 25 years. You might not have married or formalised your partnership for whatever reason. Love was your bond and that kept you together through the good and the bad times. The family never really liked you that much, for them you were the odd one out and nobody could understand what their family member saw in you.

Now in South African law, you could die Testate (leaving a Will) and Intestate (without a Will).

If your loved one passes Intestate, their estate will be dealt with in terms of intestate succession law, meaning assets would be divided to the nearest living family. Imagine being left on the street with nothing but the clothes on your back.

Certainly, if your loved one had the chance to correct this, they would have taken the time to formalise a valid Will. It would never have been their intention to leave you in such devastation.

So how does one go about drawing up a valid Will? For the sake of this example, let’s say a 52-year-old male client is being advised. The relevant questions one would ask him, include:

  1. His personal detail, name, ID, address and telephone number.
  2. Whether he is married and if so, is it in or out of community of property. Is the accrual system applicable if married out of the community of property?
  3. Did he live in cohabitation, for how long and is the partnership registered or not.
  4. Whether he has children and if so, their ages. If they are minors, who he wishes to appoint as guardians.
  5. What is the approximate value of his estate and of what does it consist? (This is then an opportunity to assist the testator with estate planning.)
  6. Whether he wishes to benefit:
    • Any relatives or friends besides his wife, partner and children;
    • any employees or other people; and/or
    • any charity or other similar institution.
  7. If the value of the estate is considerable, creating a trust would be beneficial.
  8. If there are minor beneficiaries, point out the advantages of a trust.
  9. Whom he wishes to appoint as executors and/or trustees.
  10. Whether he requires his executors and/or trustees to furnish security.
  11. If children are the proposed beneficiaries, whether he wishes them to benefit equally.
  12. Whether he wants any delay in vesting an inheritance to any of his beneficiaries.
  13. If a beneficiary should predecease him, who is to be the alternative beneficiary.
  14. Whether he has given or is likely to give any child a gift of some substance and if so whether he requires such child to collate the gift.
  15. Whether he wishes to bequeath as a specific legacy or any asset to a particular person.
  16. Whether he has shares in public companies and if so whether he wishes them to be sold or whether he wishes to bequeath them or any of them to a particular person.
  17. If he has immovable property, whether there are any mortgage bonds registered against the property and if so how the mortgage bonds are to be settled.
  18. If any portion of the estate is to be held in trust, what powers are to be given to the trustees and how must the trustees deal with income or capital.
  19. If a trust is to be created and the trustees are to be given powers of investment, what limitation, if any, does the testator wish to impose as to the nature of investments. (The widest powers should normally be granted.)
  20. Whether he has any firearms and if so, what should happen to them, keeping in mind that firearms cannot be bequeathed to a trust.
  21. About any cash legacies, whether he wishes any legacy to be given as a pre-legacy.
  22. Whether in the case of any legacy he wishes any conditions to be attached and if so, the various conditions should be explained to him.
  23. Whether he wishes any conditions to be attached to the residuary heir i.e. whether he wishes any portion of the estate to be subject to a usufruct or fideicommissum.
  24. Whether in the case of a mutual Will of spouses they wish to mass their entire estates or any part thereof.
  25. Whether the testator wishes to give an annuity as a legacy to any person.
  26. Whether the testator wishes to be cremated.

The answers to the above questions will enable your advisor to structure your Will so that it sets out your last wishes. It will ensure that your executor is best equipped to assist your loved ones effectively and efficiently without unnecessary delays.

Contact your legal advisor today. There might be 1000 different excuses as to why the drafting of your Last Will and Testament can wait another day. The question to ask yourself is: what if tomorrow never comes?

Written by Andries Cornelissen (B. Proc, Practical Legal Training, Accredited and Certified Mediator, International Accredited and Certified Mediator London School of Mediation, Certified and Accredited Conflict Coach, Practicing Associate: The Association of Arbitrators, Certified and Accredited AHI Representative)