Its August, and that means its Womens’ Month. I would like to celebrate women this month, as a result, this post is inspired by a young, professional, and talented woman of God. Miss Thando Mjoli, an Admitted Attorney with over 6 years of experience practicing Law.
Too many people, mostly single mothers, overlook the essential importance of having or writing a will, especially in the black community. They assume that whatever assets they have accumulated would be automatically left to their beneficiaries or dependants. We delve into that as Miss Mjoli answers a few of my questions.
What is a Will?
The most basic definition of a will is that it is a formal, signed, written document, in which a testator voluntarily sets out his instructions in unambiguous terms as to how his assets are to devolve following his death. By drafting a Will, you ensure that your belongings are divided equally among your CHOSEN beneficiaries
Where to get a Will drafted?
- Bank: They often offer free will-drafting services to their clients. It is important to note that in many of these cases the bank elects itself as the executor (is an individual appointed to administer the estate of a deceased person) of the estate. This means they are responsible for executing the wishes of your will when you pass away.
- Attorney, or Accountant: Upon consultation, they can help draft a will for you for a fee. Once it has been signed and witnessed, the original is kept at the attorney/accountant’s office and the testator (The person who draws up a will is known as the testator if male or testatrix if female) only gets to keep a copy.
What must be on the will?
- It is important to note that all persons 16 years and older are competent to have a will.
- It must be in writing. It can be written by hand, typed or printed
- The signature of the testator must appear on every page of the will as well as at the end.
- A witness must attest the last page of the will in the presence of the testator
- You must include all details of assets as well as the names and details of your heirs
- Decide who should be your executor, and indicate this
- Decide and indicate what should happen to the inheritance of a minor beneficiary
- If you are the sole guardian of your minor child, indicate who should be appointed as the guardian of your child after your death
What are some of the challenges of not having a will have you seen especially in black communities?
The sad reality is that in our black communities most people die intestate. This means they die without a will. This then results in some family members trying to make the claim that they are entitled to the assets of the deceased. If you die without leaving a will or a valid will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987).
A perfect example is a single mother who was raised in a loving home, with a great relationship with her parents and siblings. In her mind she doesn’t see a need for having a will because she trusts that her parents and siblings would definitely take care of her child should she pass away.
Let’s say she has a number of properties and financial investments in her name. In her passing, we then assume that the grandparents or extended family members would take care of the child. We assume that whatever the deceased left behind would be used wisely to take care of the child.
In reality, this is seldom the case. Even if she may have had conversations with her family with regards to who gets what when she dies. You find that family members of this child especially grandparents or siblings of the deceased trying to control all the assets and name themselves as the executor of the estate.
In some cases, family members go as far as amending the will so that they can get their hands on an inheritance. When these situations arise at times attorneys find themselves in the middle of family quarrellers especially when they know there is a lot to be inherited by the child.
You find grandparents from the fathers’ side fighting with the grandparents from the mother’s side with aunts and uncles in the mix. All feel they have a right to claim what the deceased has left behind. Having a will is a way of avoiding all of that because the wishes of the deceased are clearly stated on it and should any person act in contravention to the will, legal action can be taken against that them. Yes, we love and trust our families but you have no idea how they are going to behave in the event of your death.
You can have a will if you only have policies and no property or pension fund?
Yes, you can. A will is not only limited to movable or immovable assets. Policies and investments are the ones that families fight for the most. For example, you can have life cover and have your children as beneficiaries. Over and above them being named the beneficiaries on the policy, they can also state how the payout should be divided and the conditions to when (at what age) they should receive the payout.
What happens if I have a will but have not told anyone about it except my attorney?
When you draft and sign a will with your attorney, remember it is also signed by witnesses for it to be valid. It is recommended that you inform at least one person in your family about the existence of it. Your family needs to make sure they notify your attorney as early as possible in an event of your passing. Once your attorney has been notified, he/she has the responsibility to notify all interested parties, and that is when the will is readout.
What happens when I draft a will then later accumulate more assets?
That process is called a codicil. It is a schedule or annexure to an existing will, which is made to supplement or amend it. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.
What would you advise women, especially single mothers with regards to having a will?
Having a will drafted protects your hard-earned money and investments, it also protects your child. My advice to women is that if you have assets, it is very important to have a will so that your children don’t suffer when you are gone. You need to make sure that your assets and investments don’t fall into the wrong hands.
Please do speak with your attorney or legal advisor for more information with regards to this topic and make the decision that is suitable for you.