National Wills Week will take place from September 11 to 15. The annual initiative will see participating firms affiliated to the Law Society of South Africa offer basic will-drafting services at no cost.
Yolanda Akram, who owns Akram and Company Incorporated law firm in Morningside, said families are often left distraught when no valid wills are left behind.
Her firm specialises in, among others, deceased estates, wills and trusts, and human rights law.
“A last will and testament is one of the best gifts you can leave behind for your family. A majority of people in our community do no have a will and, unfortunately, their estate will not always be distributed according to their wishes. By writing a will, you will ensure that your belongings are divided among your chosen beneficiaries. Having a valid will is the best way to avoid unintended consequences.
“Other benefits include the ability to appoint guardians and caregivers for any minor children; limiting taxes payable on deceased estates; keeping a helpful record of assets that surviving relatives might not be aware of; helping to ensure your family do not experience conflict while trying to come to an agreement about who should be the executor,” said Akram.
She shared examples of cases her firm had dealt with where issues with the deceased’s will created problems for their kin.
When there is no will
“If you die unexpectedly and without leaving a will, under South African law your estate will be distributed according to the laws of intestate succession. This means your assets may be distributed in a way that differs from what you may have chosen had you taken the opportunity draw up a will.”
In one case, she spoke about parents, their children and a grandmother who lived together.
“Tragically, the parents died in a car accident and there were no wills in place. As a result, the Law of Intestate Succession, which is effectively the States Will, determined how the estate was split up.
“The grandmother, family and friends helped notify the banks, car finance, bonds, and all account holders of the deaths and sent death certificates to these entities. The grandmother approached the attorney for assistance in the administration of the deceased estate.
“The Master of the High Court then had to appoint the nominated executor, but due to the number of intestate estates, there were delays in appointing the executor. These delays can run into months and sometimes years. This is a problem because until the estates are finalised, assets and bank accounts are frozen. In this case, the children and grandmother did not have access to the funds for daily expenses from the parents’ bank accounts.
“It was up to this bereaved family to go through all the parents’ paperwork to find whatever policies and accounts existed. The parents did not have their affairs in order and this resulted in further delays in trying to get the paperwork together for the executor and a large policy left to the children was lost. After three years, the appointed executor was able to distribute the estate.”
Akram said in this case, the children would be the sole beneficiary of the estate, but there could be complications.
“Firstly, there is no guarantee the grandmother would be provided for. Secondly, all the funds would have to be paid into the guardians fund, run and administered by the state. As there is no will nominating the legal guardians, the court will appoint a guardian for the children. Unfortunately, this person may not have been the parents’ first choice.
“The court-appointed guardian would then have to work through the guardian fund to access the finances to provide for the children. This is not easy due to the strict requirements to prevent fraud in accessing funds and the general bureaucracy that surrounds state institutions. Not having a will can be a problem. If you have children, there is no reason why you should not have a will.”
When a will is not valid
In the second example, Akram said the Wills Act sets out the requirements for a valid last will and testament, and for a will to be valid it must be signed and witnessed.
What happens if the wishes of the deceased are clear, but the document does not meet the requirements of a valid will?
“A client sought an order directing the Master of the High Court to accept a will for the purposes of the Administration of Estates Act, a pro forma document signed by the deceased in which she gave instructions to a bank to draft her will. The nature of the bank document was consistent with its printed title, ‘Will Application/Aansoek om Testament’.
“It was apparent from the terms of the document that the bank offered a service for the drafting of wills. The service is provided free if the bank’s trustee company is nominated as the executor.
“The will application form was completed by the deceased with the assistance of a representative of the bank on the day before she died. She was terminally ill with cancer at the time and died before her instructions for the drafting of a will were executed. Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid wills. It is advisable to obtain professional assistance from an attorney with the drafting of wills.”
Inheritance at risk
Akram said in another matter, a relative of two minor children approached their office for advice as to what would happen to the children’s inheritances as their parents died without a will.
“We explained that due to no will being present, the children’s inheritances would be kept and managed by the Guardian Fund. The government created the Guardian Fund to receive and manage money on behalf of persons legally incapable, or who cannot manage their affairs. This includes minors and mentally disabled people. In our case, if the parents had left a valid will, the executor would have been able to set up a trust to handle the inheritances.
“Whether you are a parent, a breadwinner, a homeowner or want to ensure your affairs are in order, it is important to have a valid will drafted by a professional. With a valid will done by a professional, the chance that a claim is brought against your estate in court is minimalised.
“A valid will allows you to state your last wishes, who should inherit your assets and property, who you would like to act as executor for your estate, and who you wish to nominate as guardian/s for your minor children (younger than 18 years old). A valid will enable you to protect the interests of your loved ones and help ensure there are no unnecessary delays in settling your estate after your death.”
She said attorney firms that would offer free will services were listed on the Law Society’s website (www.lssa.org.za) or call the Law Society of South Africa at 012 366 8800 or email [email protected].
For a complimentary consultation during Wills Week, Akram can be contacted at 071 498 7243 or email [email protected] for an appointment.