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When Last Did You Update Your Will? Don't Have One? Read This.



A will is one of the most important legal documents you can have. It ensures that your assets are distributed according to your wishes after your death and can help prevent potential disputes among your heirs. Despite its importance, many people either do not have a will or have not updated theirs in years. This article discusses why you should regularly update your will, the requirements for a valid will under South African law, and what steps you need to take if you don’t have one.


Having a will in place is essential for anyone who wants to ensure that their estate is managed and distributed according to their wishes. Without a will, your estate will be distributed according to the rules of intestate succession, which may not reflect your personal desires. This could lead to unintended beneficiaries receiving part of your estate or important people in your life being left out entirely.


If you already have a will, it is crucial to keep it updated. Life events such as marriage, divorce, the birth of children, the acquisition of significant assets, or the predecease of an heir, executor, or spouse can all impact your estate planning needs. An outdated will may not account for these changes, potentially causing complications and disputes after your death. Regularly reviewing and updating your will ensures that it reflects your current circumstances and wishes. This involves assessing your assets, considering any changes in your personal relationships, and understanding the current legal implications.


In South Africa, the Wills Act, 7 of 1953, governs the requirements for a valid will. Firstly, a will must be in writing. This can be handwritten or typed, but it must be on a physical document, as digital wills are not recognised under South African law. The original will is required; copies are not valid for legal purposes. The will must be signed at the end by the testator (the person making the will), and this signature must be made in the presence of two or more competent witnesses. The witnesses must also sign the will in the presence of the testator and each other. Witnesses should be over the age of 14 and should not be beneficiaries or the spouses of beneficiaries under the will.


Section 2B of the Wills Act addresses the implications of divorce on a will. If you have made a will and subsequently divorce, any provision in the will that benefits your former spouse will be deemed revoked unless the will expressly states otherwise. This revocation applies from the date of the divorce. However, if you do not update your will after a divorce, it is possible that your former spouse could still inherit if the will is not explicitly clear on this matter. Therefore, updating your will after such significant life events is crucial to ensure that your current wishes are accurately reflected.


A comprehensive will should also deal with the residue of your estate. The residue is the remainder of your estate after all specific bequests, debts, and expenses have been paid. If your will does not address the residue, it will devolve according to the rules of intestate succession, which may not align with your wishes. Ensuring that your will includes clear instructions on the distribution of the residue can prevent potential legal complications and disputes among beneficiaries.


Choosing the right executor for your will is another critical aspect of estate planning. The executor is responsible for managing your estate, settling debts, and distributing assets according to your will. It is essential to choose someone reliable, trustworthy, and capable of handling these responsibilities. The executor can be a family member, a close friend, or a professional such as an attorney or accountant. Discussing your choice with the potential executor beforehand is advisable to ensure they are willing and able to take on this role. Spence Attorneys can also serve as your executor, providing professional and experienced management of your estate.


Failing to have a will or keeping an outdated will can lead to significant issues for your estate and beneficiaries. Without proper estate planning, your estate may face unnecessary delays, increased costs, and potential disputes. Creditors may also have claims against the estate, which can further complicate the administration process. Proper estate planning, including a well-drafted and regularly updated will, helps to minimise these risks and ensures that your wishes are carried out efficiently.


If you do not have a will, it is essential to create one as soon as possible. Begin by making a list of all your assets, including property, investments, bank accounts, and personal belongings. Also, consider any debts or liabilities that need to be addressed. Decide who you want to inherit your assets, including family members, friends, or charities. Be specific about what each beneficiary will receive. Choose someone you trust to manage your estate after your death. This person will be responsible for ensuring that your assets are distributed according to your wishes and that any debts are paid.


If you have minor children, you should appoint a guardian who will care for them if you pass away. Discuss this decision with the potential guardian to ensure they are willing and able to take on this responsibility. While it is possible to write a will on your own, consulting an attorney can ensure that your will is legally sound and covers all necessary aspects. An attorney can also provide advice on minimising potential legal pitfalls. For your will to be valid, it must be signed and witnessed. In South Africa, at least two witnesses are required, and they should not be beneficiaries of the will. Keep your will in a safe place and inform your executor and close family members where it is located. You may also consider storing a copy with your attorney.


Updating your will regularly and ensuring you have one in place are crucial steps in estate planning. These measures provide peace of mind, knowing that your wishes will be honoured and your loved ones will be cared for. If you need assistance with creating or updating your will, contact Spence Attorneys. Our experienced team can guide you through the process, ensuring that your will accurately reflects your intentions and complies with all legal requirements. We also offer comprehensive estate planning advice and can serve as your executor, providing professional management of your estate. Contact us at info@spencelaw.co.za or 0215329224


Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific legal advice regarding wills and estate planning, please consult with a qualified attorney.

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