WILL I OR WILL I NOT
SETTING THE SCENE
There are many questions and misconceptions around the drafting and executing of a last will and testament and many people grapple with some of the following issues:
The State stake
If you die without a valid will, then the Intestate Succession Act, 81 of 1987 (Intestate Succession Act) will regulate who the beneficiaries of your estate will be. The beneficiaries may include a spouse, biological children, adopted children, parents or other blood relatives as determined by the applicable clauses of the Intestate Succession Act. It is only when there is a total lack of beneficiaries that your estate will devolve upon the Guardian’s Fund (Master of the High Court) and if it is unclaimed after a period of 30 years it will be forfeited to the State.
The rescue remedy
Judgement was given in May this year by the Western Cape Division of the High Court, Cape Town in the court case of Dryden v Harrison and Others.
The applicant, who was in a romantic relationship with the deceased, sought an order that the will of the deceased, an email, be accepted by the court as a valid will. The will was declared invalid by the Master as it did not comply with the formalities as stipulated in the Wills Act 7 of 1953 (the Wills Act). The application was brought by the deceased’s partner on the basis of section 2(3) of the Wills Act (the rescue remedy).
In terms of the rescue remedy a court may, in certain instances, order the Master to accept a document as a valid will although the document does not comply with the formalities as set out in the Wills Act. However, it is very important to note that the court must be satisfied that the document was drafted or executed by the person who subsequently died. Furthermore, the court must also be satisfied that the deceased person intended the document to be his or her will.
The deceased in the Dryden case had previously executed a will in 2006 in terms of which he had bequeathed his estate to his then-spouse, however the marriage was dissolved by a divorce order in 2011, but he did not amend his will. In 2016 the deceased sent an email to the applicant confirming that if he died all his assets and investments should go to her.
The application was dismissed with costs as the court was not satisfied that the deceased intended the email to be his last will and testament, as he did not proceed to formally execute a will which complied with the necessary formalities as prescribed in the Wills Act. It therefore goes to show that the mere existence of a rescue remedy does not mean that it will validate an invalidly executed will.
THE FORMALITY UNREALITY
In a recent South Gauteng High Court case, Karani v Karani NO and Others, the will of the deceased did not comply with the specific formality in terms of section 2(1)(a) the Wills Act (s2(1)(a)). This section requires that a will must be signed by the person making the will in the presence of two or more competent witnesses. These witnesses must also sign the will in the presence of the person making the will, and of each other.
In the case of Karani v Karani, two witnesses did sign the contested will. However, the first witness did not sign the will in the presence of the deceased or the second witness. In the end, the court found the will to be a forgery and declared it invalid.
Furthermore, the court made the remark that s2(1)(a) should be interpreted as to require witnesses to a will to also sign each page despite the fact that the section only requires that the creator of a will sign each page of a multi-page will. The reason for this is to mitigate any potential dispute between heirs and family members in the future.
It is a misconception that the formalities required for execution of a valid will are overrated or unnecessary. We, for example, often have clients who return their wills to us signed only by themselves. They then request that someone in our offices witness the will for them, which we, obviously, are unable to do. The fact of the matter is, that by not complying to the formalities dictated by s2(1)(a) you can potentially invalidate your will which could result in dire consequences for your heirs at a time when they already have enough on their plate.
THE WORLDWIDE WILL
If you have executed a will in South Africa which does not specify that the jurisdiction of the will is only South Africa it will in terms of our law cover your worldwide estate. However, if immovable property is involved, we strongly advise that you have a separate will drafted by a professional in the jurisdiction where the immovable property is located.
The first reason is that certain countries have statutory rights like forced heirship, which means that a South African will which deals with the foreign asset will never be able to override the rights of certain family members to inherit within that jurisdiction. Furthermore a probate (court authority) will be required in most foreign countries to deal with the foreign asset, because South African Letters of Executorship are not necessarily accepted and recognised as the authority needed for the South African executor to deal with the foreign asset. Lastly it is important to note that English might not necessarily be the legal language of the particular country and it might therefore necessitate a sworn translation of the will.
It is also important to note that when drafting local and foreign wills it is vital that the two wills complement each other with specific reference to the revocation clauses of the wills. The last thing you want is that one of the wills erroneously revokes the other because the revocation clauses were not drafted in accordance with each other. It is thus important for you to tell the people drafting your will that you have multiple wills, and to perhaps have a single person co-ordinating the drafting of your local and your offshore will.
Taking all of the above into consideration it makes sense to involve a professional in the relevant foreign jurisdiction where your immovable property is situated to draft a will dealing only with that asset as it will potentially save time and costs. We are able to assist you to with this by referring you to suitable professionals in other jurisdictions.
THE SHORT AND SWEET
Clients sometimes complain about a will being way too long or too complex. A one page will with all the required formalities is better than no will, however it will seldom make provision for a testamentary trust to be formed in cases where a minor inherits. If these provisions are not stipulated, then the minor’s inheritance must be paid to the Guardian’s Fund.
The wills that we draft cater for uncertain future scenarios and have been developed over time to help resolve unforeseen circumstances which may arise. They are very comprehensive and therefore lengthy documents.
TIPS FOR ENSURING YOUR WISHES ARE CARRIED OUT
If it is your wish to have the last say as to how your estate should devolve, then have a will drafted. Failing to do so will have the Intestate Succession Act decide who your beneficiaries are, on your behalf.
It could be a very costly and unnecessarily lengthy process to take a shortcut in the drafting of a will. Therefore consult a professional to assist you with the drafting and execution of a will as they should know the specific formalities which need to be complied with in terms of South African law. The ultimate goal is to make sure that you have a valid will which properly executes your last wishes when you are no longer here.
Ensure that the professional drafting your will is aware of any offshore immovable property you may own so that a separate offshore will can be executed in the relevant jurisdiction. If, however, you already have a foreign will, ensure that your local provider is aware of this.
Citadel Fiduciary has the required expertise in the area of estate planning and the drafting of wills tailored specifically to your wishes. We understand the importance of proper planning when it comes to the law of succession. Please contact your advisor if you require further information or assistance.