In the spirit of National Wills Week (11- 15 September), PDBY spoke to assistant lecturer Elisa Rinaldi, a doctoral candidate who currently teaches the Law of Succession and Private International Law. In an interview regarding wills, Rinaldi provided a great deal of insight and legal wisdom.
What is a will and testament?
A will can be described as a unilateral and voluntary expression of someone’s testamentary wishes, expressed in a legally prescribed way (This may be referred to as testate succession.) In other words, a will is a legal document and someone must intend to express what they’d like to happen to their estate upon their passing in such a legal document.
Why should one have a will?
You should have a will in place so that you, as well as those who you want to inherit from you, can have certainty as to what will happen upon your death. Having a will in place will ensure that those whom you care for, and especially those who depend on you, will be taken care of once you pass. Should you not have a will in place when you pass, only certain people who are biologically related to you will inherit (This is known as intestate succession.)
What happens if a person does not have a will in place?
If you do not have a will in place, you will die intestate. This means that only those related to you by blood (or, I suppose those the law deems related to you) will inherit. Even then, some relatives will inherit to the exclusion of others. For instance, should both your parents still be alive, your siblings will not inherit from you.
Where can one find the formalities needed for a valid will?
Section 2(1)(a) of the Wills Act 7 of 1953 has the formalities for executing a valid will. However, law firms usually write blog pieces on their websites, and they do a fairly good job of summarising the law.
Can one draft their own will?
You can definitely draft your own will. The formalities are fairly simple and generally just require certain people to sign [the will]. It is when you own a number of different assets that you’d like to go to specific persons and, maybe, under certain conditions, that it becomes advisable to get someone to draft your will for you.
What is a living will and why would a person need one?
A living will is a document that explains what you would like to happen in regard to future medical treatments, in instances where you are unable to give informed consent. The most common is regarding resuscitation. Would you want to be resuscitated in instances where doing so would place you in a vegetated state? Should you have strong feelings regarding these types of decisions (like DNRs or “do not resuscitate”), it is advisable you have a living will in place.
Why do you think Wills Week is important?
Wills Week is important, as it gives people an opportunity to have their wills drafted by a professional, free of charge. It makes these types of legal decisions more accessible and easier to make.
Do you have a will?
I do have a will as well as a living will in place.
How often should one update their will?
You should update your will as often as circumstances in your life significantly change. I.e., [if] you have a child, get married (or divorced), or acquire or alienate any property, you should change your will.
Where should one store or safe-keep their will?
Should you get a third party such as the bank to draft your will for you, they will, in most instances, keep the original copy of your will, which is the safe[st] option. Should you draft one yourself, it is advisable that you keep it in a safe place and that you inform someone of where it is so they may find it when you pass.
Can one exclude a beneficiary based on sexual orientation?
No, you cannot unfairly discriminate against your beneficiaries, even in your private will. Doing so will invalidate the clause or even the entire will. It will not be enforced. This is per the judgment in King v De Jager 2021 (4) SA 1 (CC).
Any interesting concluding remarks regarding Wills Week?
Should you have assets in different parts of the world, it could happen that different laws will apply to the distribution of those assets. That might impact the ability of your beneficiaries to inherit. It is advised that in such a case, you specify which law should govern your will.
