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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2019-09-27

Freedom of Testation

The 2019 National Wills Week tool place from 16 September to 20 September. This initiative by the South African Legal Practice Council, has been in existence for decades and it encourages members of the public to obtain a basic will for free from participating law firms, ours being one of them. The Legal Practice Council has this to say about the importance of having a will.

By making a will you ensure that your assets are disposed of in accordance with your wishes after your death. This privilege is called "freedom of testation".

Why should an attorney draft your will Attorneys are professionals qualified in law. An attorney can advise you on any problem which may arise with regard to your will. An attorney has the necessary knowledge and expertise to ensure that your will is valid and complies with your wishes.

Often a will is not valid because the person who drafts it does not have the necessary legal knowledge to ensure that the requirements of the law are met.

What happens to your estate if you die without a valid will If you die without leaving a valid will, your assets will be distributed according to the provisions of the Intestate Succession Act. The provisions of this Act are generally fair and ensure that your possessions are transferred to your spouse and children.

BUT, the following problems may arise if you die without leaving a will:

* Your assets may not be left to the person of your choice.

* It can take a long time to have an executor appointed. The executor who is appointed may be somebody you may not have chosen yourself.

* There can be extra and unnecessary costs.

There can be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets.

To make a will, you have to be 16 years or older and of sound mind. You do not need to have substantial assets in order to have a will in place. Anything that is of importance to you, including an item that is of sentimental value can be bequeathed to whoever you choose to give it to.

For a will to be valid, it must be in writing, signed in full by you and two witnesses and each page of the will must be initialled by you and your two witnesses at the same time. The people who witness your will must be over 14 years of age and not be heirs or beneficiaries of your estate.

You will need to appoint an executor in the will. An executor is a person who will ensure that your belongings and assets are given to those persons according to your wishes. The executor would also settle your debts and makes sure that your assets are distributed according to the will.

It's important to review your will after divorce. If you do not amend your existing will within 3 months of your divorce, your former spouse to inherit whatever you had given him/her in your will. If you don't have a valid will when you die, your property will be divided according to theIntestate Succession Act.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.