Wills Presented By Sipho Mthethwa Tel (033) 845 9700
What is a WILL ? A Will is a written document in which a person voluntarily directs what he/she wants to happen with his/her assets and certain personal affairs upon his/her death
• The Will must be in writing • The Will must contain wishes of the person making it (testator) and not those of the people who are to benefit under it. • Requirements for a valid Will set out in the Wills Act No. 7 of 1953
Who Can Make A Will? Section 4: Wills Act 7/1953 • age of 16 years and over • Mentally capable of what he/she is doing and understanding the consequences
Basic Principles (What can I do/cannot do) • Basic principle is that ito SA Law a testator has ‘freedom of testation’, i.e. may dispose of all and any of their assets in however manner they want to and to whomever they want. • Freedom of testation constitutionally protected but not completely unrestricted; • eg
• No illegal or bequests which are against public policy • Wording clear enough to be understood • You have a legal duty to maintain and educate your minor children • If you have to disinherit your spouse, he/she may claim certain assets/sums of money from your estate if married ICOP or OCOP with accrual.
Formalities • Failure to comply with the formalities of the Wills Act 7 of 1953 invalidates the Will • The Court can in certain circumstances validate an otherwise invalid Will • Costly • Delays administration of estate
Requirements for a Valid Will
Divorce • 3 month window period • If you die within 3 months of the date of your divorce then your ex-spouse cannot inherit under your Will signed before the date of your divorce. He/she can inherit once the 3 months is up: unless a contrary intention appears from your Will (sect 2B)
• So it is important to draw a new Will after you are divorced if you do not want your ex-spouse to inherit from you. • You may amend your Will as many times as you wish
Parties in a Will • Executor - administers your estate - nominated by you, appointed by the Master • Guardian – if you have minor children • Testamentary Trust – created in the Will • Trustee – will set up a trust to look into the interest of your minor children
• Beneficiary/beneficiaries • Heirs • Child/children • Issue – all your descendants including your children • Next-of-kin – interpreted as ‘estate heirs’ • Husband/wife/spouse All inherit from your Will
What happens if you die without a Will? • The Intestate Succession Act • Effect :- • Surviving Spouse R250 000,00 or a child’s share, whichever is the greater; • Child’s share paid into Guardian’s Fund if it is cash
Estates • Less than R250 000,00 Don’t advertise for debtors and creditor (Section 29) of the Administration of Estates Act, or to advise third parties liquidation and distribution account available for inspection (S25) • Nominated executor will handle affairs
• More than R250 000,00 All formalities apply – incl. - advertisements - Master will appoint an attorney / accountant/accredited trust company/ estates administrator
• Greater than R3,5 million – Potential estate duty payable depending on testator/testatrix’s individual circumstances and terms of the Will – Currently 20% of value of assets
MATRIMONIAL PROPERTY SYSTEMS • Unmarried • In community • Out of community with/without accrual • Customary Marriages • Marriages governed by the laws of other countries
LAST WILL AND TESTAMENT OF ME THEMBA MABASO IDENTITY NUMBER: 560518 5326 08 8 UNMARRIED 1. I revoke all Wills previously executed by me. 2. I nominate Sipho Mthethwa of J. Leslie Smith Attorneys, to be executor of my estate
In the event that the said Sipho Mthethwa is unwilling or unable at any time and for any reason whatsoever to act as my Executor, then I nominate the Senior Partner at the time of the firm J. Leslie Smith Attorneys or its successors in title to act in his place. 3. I grant my Executor all such powers as are required in law and especially that of assumption.
4. I direct that the Master of the High Court shall not call upon my Executor nominated herein or assumed hereunder to file security for the administration of my estate under the Estates Act, the Trust Property Control Act or any amendment thereof or any Act passed in substitution thereof.
5. I bequeath: 5.1 To my friend Vusi Mkhize, the sum of R50 000,00 (Fifty thousand rand); 5.2 To each of my employees, Thulani Ngcobo and Thembi Nkosi, the sum of R80 000,00 (Eighty thousand rand) 5.3 To St Vincent Catholic Church, Pelham the sum of R20 000,00 (Twenty thousand rand)
5.4 To my son, Andile Mabaso, my property situate at 2435 Ndaba Road, Unit 3, Imbali Township, Pietermaritzburg, subject to the condition that my sister Thoko shall have the right of habitatio in the granny flat erected thereon until her death or marriage, whichever event occurs soonest. My sister shall be responsible for payment of a ¼ rates costs.
In the event that any of the above legatees have predeceased me or decline or are unwilling or are unable to inherit for whatsoever, then his or her legacy shall form part of the residue of my estate and devolve in accordance with clause 6 below. 6. I bequeath the residue of my estate to my two sons, Phila Mabaso and Senzo Mabaso and my daughter, Asanda Mabaso in equal shares or should any has predeceased me, to the survivor of them in equal shares.
7. In the event of an heir being under the age of TWENTY FIVE (25) years at the date of my death, then the inheritance due to such heir shall be held in Trust by my Trustee in favour of such heir with the powers of and subject to the conditions following: - i. My Trustee shall have full authority in his entire discretion to retain any asset as it exists at the date of my death, or to redeem such asset and to invest or re-invest these and any other funds in such securities and investments including the purchase of immovable property and shares as he may decide, notwithstanding that such investments may be of a type not ordinarily regarded as being Trust Investments. My Trustee shall at all times exercise due care with regard to such investments and if necessary seek professional or other expert advice. My Trustee is indemnified should depreciation of capital under his administration result from the retention of any assets aforesaid and the investments of the funds in securities which are not ordinarily deemed to be of a trustee nature.
ii. My Trustee shall be entitled to sell movable or immovable property by private or public auction or he may lease movable or immovable property on such terms and conditions as he considers in the interest of my Estate. iii. My Trustee shall be entitled to sell movable or immovable property by private or public auction or he may lease movable or immovable property on such terms and conditions as he considers in the interest of my Estate. iv. My Trustee shall be entitled to sell movable or immovable property by private or public auction or he may lease movable or immovable property on such terms and conditions as he considers in the interest of my Estate. v. I authorise my Trustee to extend the date of repayment of any amount due by me at the date of my death under Mortgage Bond, promissory Note, Acknowledgement of Debt, Bank Overdraft or any other loan on such terms and conditions as he considers advisable.
I furthermore authorise my Trustee to borrow any sum of money to repay such debt or to borrow any sum in addition to any amount owing by me as above if he, in his entire discretion is of the opinion that it would be in the interest of my Estate to do so. My Trustee is authorised to pass Mortgage or other Bonds or to give any form of security for the purpose aforesaid. vi. The income derived from that portion of my Estate and held in Trust by my Trustee and the capital, if necessary, in his entire discretion, shall be applied to the maintenance, support and education of such heir until such heir attains the age of TWENTY FIVE (25) years when the capital then remaining plus accrued income, if any, shall be paid to such heir or their lawful issue. vii. The income derived from that portion of my Estate and held in Trust by my Trustee and the capital, if necessary, in his entire discretion, shall be applied to the maintenance, support and education of such heir until such heir attains the age of TWENTY FIVE (25) years when the capital then remaining plus accrued income, if any, shall be paid to such heir or their lawful issue.
8. I appoint as guardian of any children of mine that are minors at the time of my death, my aunt FIKILE SITHOLE . If Fikile Sithole is unable or unwilling to act as Guardian for whatsoever reason , the I appoint my cousin, THULI GOBA, as the Guardian of my minor children I direct that the Master of the High Court shall not call upon any guardian to file security for the exercise of her duties as legal guardian.
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