Written by Mari van der Walt
30 June 2023
“A good plan is like a road map: it shows the final destination and usually the best way to get there.” — H. Stanley Judd.
When carving out your route map for life, one of the most critical stops on your way to your final destination is the drafting and execution of a Last Will and Testament. There are numerous important aspects surrounding a Last Will and Testament; however, the golden thread will always be the intention of the testator and, specifically, what they intended to achieve when drafting the Last Will and Testament.
To enable testators to best express their intention, a comprehensive understanding of the basic clauses in a Will and Testament is paramount.
Does a last Will and Testament need a heading?
It is recommended that the last Will and Testament contain a heading on the first page, clearly identifying the testator. Thus it will contain the full name, surname as well as identification number of the testator. Additional information, such as the marital status of the testator and residential address can also be indicated.
What is a revocation clause and is it needed?
In short, a revocation clause will recall or cancel any previous last Wills and Testaments executed by the testator. Where there is no revocation clause, any previous last Wills and Testaments executed by the testator will apply and be enforceable. The effect thereof will be that all last Wills and Testaments need to be read together, where clauses are in conflict with one another the latest will prevail.
Is it necessary to appoint an executor?
Yes, the appointment of an executor is of vital importance as the executor is the person entrusted to wind up the estate of the testator upon passing, ensuring that the wishes of the testator are executed and complied with the relevant legislation, such as the Administration of Estate Act 66 of 1965.
If an executor is not appointed, all heirs will need to unanimously nominate an executor to be appointed by the Master of the High Court. Read our article on the appointment of an executor in an estate: https://www.burgerhuyserattorneys.co.za/appointing-an-executor-in-a-deceased-estate-in-south-africa/
What is the security to be provided by the executor?
Any appointed executor must furnish the Master of the High Court with security in a determinable amount, which will ensure due and proper fulfilment of their duties as executor. The reason for this is to ensure that the estate does not suffer any losses, and where it does, the Master of the High Court shall be entitled to recover such losses from the executor personally.
The Master can exempt certain persons from the furnishing of security. These include parents, surviving spouses or children of the deceased. Where the executor has been specifically exempted from furnishing security in the last Will and Testament of the deceased, they shall be entitled to rely thereon.
What happens if my executor is unwilling or unable to fulfil their duties?
Two provisions can be made in your Last Will and Testament should your executor for any reason be unwilling or unable to attend to their duties namely:
- Nominate an alternative executor to substitute the first named executor;
- Furnish your executor with the power of assumption – they will then be able to appoint another executor to wind up the estate of the deceased.
What fees are an executor entitled to and should it be stipulated in my last Will and Testament?
The Administration of Estates Act 66 of 1965, prescribes the allowed fee an executor is entitled to for winding up the estate of the deceased.
An executor is allowed 3.5% on the gross value of all assets of the deceased at the date of death, as well as 6% on any income generated by the estate after the date of death. Should the executor be a registered VAT vendor, VAT will also be levied in addition to the aforementioned percentages. It is not required that the preceding be set out in the last Will and Testament of the deceased.
How do I bequeath my assets?
There are two manners in which assets can be bequeathed to heirs and/or legatees:
- Legacy: A specific asset is bequeathed to a specific person. For example, the house will be inherited by X.
- Inheritance: The residue of the estate, is distributed in equal shares and inherited by any number of people so mentioned in the last Will and Testament. For example, the estate is to be divided between my children.
What happens to the inheritance of my minor children?
It is recommended that the testator make provision for the creation of a testamentary trust in their last Will and Testament. A testamentary trust is created in terms of the last Will and Testament where the inheritance of any minor beneficiaries will be bequeathed to the trust to be managed for the benefit of the minor children.
Should no provision for a testamentary trust be made, the inheritance of the minor children will be transferred to the Guardian Fund, and their inheritance will be managed by the state.
Provision can also be made for the appointment of a guardian for the minor children. Read our article surrounding the importance of appointing a legal guardian in your will: https://www.burgerhuyserattorneys.co.za/the-importance-of-appointing-a-legal-guardian-in-your-will-in-south-africa/
Can I stipulate my funeral wishes in my last Will and Testament?
Yes, you are entitled to provide your loved ones with directions as to your last wishes such as being cremated or buried. You can also set our specific guidelines for your funeral.
If no provision is made in the last Will and Testament, your loved ones will have the sole discretion as to funeral directions.
The mourning of a loved one is already one of the most difficult situations that one has to endure. Make sure that your loved ones are left with certainty in dark times, by consulting one of our will specialist will attorneys at Burger Huyser Attorneys.
Contact Burger Huyser Attorneys to assist with your last Will and Testament.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
