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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2014-09-05
In this issue we take a look at the all important document that a person with assets should have in his or her possession, that is a valid will. Contact our offices to get more information on wills.

Source: Department of Justice

Who is competent to make a will?
All persons of 16 years and over, unless at the time of making the will he/she is mentally incapable of appreciating the consequence of his/her action.

Who is competent to act as a witness to a will?
All persons of 14 years and over and who at the time he/she witnesses a will are not incompetent to give evidence in a court of law.
A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. There are some exceptions to this rule. An attorney will be able to explain in detail what these exceptions are.

What are the requirements for a valid will if I cannot sign my name?
You may then ask someone to sign the will on your behalf or you can sign the will by the making of a mark (a thumbprint or the making of a cross).

What is a codicil?
A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. 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 if I want to amend my will?
Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading. When amending a will, the same witnesses who signed the original will need not sign it.

Must I amend my will after divorce?
A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. A divorced person therefore has three months to amend his/her will. Should you however fail to amend your will within three months after your divorce, your divorced spouse will benefit as indicated in the will.

What will happen if I do not leave a will?
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). The consequences of this would mean that people whom you may not want to inherit from your estate, would, by law, be entitled to do so.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates. The Law Desk of Fawzia Khan & Associates. We Know! We Care! We Deliver!