Written by Candidate attorney – Nicolene Rajah
Why not draft my own will?
With the times we find ourselves in currently, it has never been more important to ensure proper estate planning. It is imperative that you to have a valid and current will to indicate how your estate should be distributed on your passing.
The drafting and execution of Wills is governed by the Wills Act 7 of 1953. If your will is not executed in accordance with the provisions of the Wills Act, the will is invalid and your estate will be distributed according to intestate succession (ie as if you have no will).
Upon death, the deceased’s will is submitted to the Master of the High Court. If the deceased’s will has not been signed in accordance with the provisions of the Wills Act, the Master has no discretion – he is obliged to declare the will to be invalid.
An invalid will may result in those you preferred to benefit being excluded as beneficiaries, and those you wished not to benefit being included as beneficiaries.
To ensure your will is valid, all the legal formalities prescribed in the Wills Act must be complied with.
The Wills Act does permit one to apply to court to validate a will which has not been signed in accordance with the provisions of the Wills Act. The court may direct the Master of the High Court to accept the will despite the fact that the document does not comply with the provisions of the Wills Act.
This “rescue provision” may seem helpful but is extremely expensive, delays the winding up of the deceased’s estate considerably and there is no guarantee of success.
It is also important to note that whilst electronic signatures have been recognised by our law in terms of the Electronic Communications and Transactions Act, this Act also specifically excludes electronic signatures being applicable to Wills.
For this reason, any last wishes that are stored electronically in emails, smses, audio recordings or video recordings should be included in a validly executed will for them to have any legal force and to be rendered valid.
To avoid any complications, you should have your will drafted by a professional to ensure that it is valid and properly executed in terms of the Wills Act.
Some benefits of visiting specialist Estate Planning attorneys at J Leslie Smith & Company Inc to have
a valid will executed are:
- Unnecessary litigation and high cost are avoided
- Delays in the winding up of your estate are avoided
- Your will can be reviewed and read with you to ensure you are able to understand and comprehend the legal consequences of your wishes
- You are better protected from the risk of being subjected to undue influence and duress when drafting your will yourself
- Your estate will be distributed according to your wishes
- Vulnerable beneficiaries can be properly protected
Call our Estates Department on 033-8459700 for expert advice and to ensure you receive the
necessary protection and guidance.