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A person making a will is
called a testator (man) &/or testatrix (woman).
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The will must be made
personally by the person and be signed at the end by him or by some
other person in his presence and by his direction.
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The will must be signed in
the presence of two witnesses present at the same time.
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Each page must by signed by
the Testator / Testatrix with the witnesses.
All persons may benefit from a
will, however certain people are disqualified and here are a few
examples:
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anyone who tries to influence the testator /trix while making
a will to give them a benefit
from the will.
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any person or their spouse who has written the will on behalf
of the testator /trix
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a person who marries a minor without the necessary consent
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a person who intentionally caused the death of the testator
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a person who conceals the will of a testator
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a witness to a will
A will properly executed is
regarded as valid until the contrary is proved and the responsibility of
proving the contrary rests on the party alleging it.
It is accepted that a testator
has the right to dispose of all his assets as he pleases.
He cannot however make bequests
which are illegal, against public policy or too vague to be enforced.
He has an obligation to maintain
his minor children and his surviving spouse has a claim against the
estate for maintenance.
A testator nominates an executor
whose duty it is to execute the wishes of the Testator in terms of the
content of the will and in terms of the Administration of Estates Act No
66 of 1965.
On the death of the testator the
will is filed at the Master of the High Court who ensures that the will
is administrated and executed correctly.
If a testator leaves an asset to
a minor child, being an unmarried person under 21 years old, the
following rules apply:
- The
guardian may accept the movable property on behalf of the minor
subject to the conditions of the will.
- No money is to be paid to a guardian, unless the will states otherwise and / or the guardian
has provided security to the master.
- Where
the will makes no specific provision regarding a minors inheritance
the inheritance is lodged with the Guardian’s Fund in the
Master’s office until the minor reaches 21 years old.
The usual order of clauses in a
will are as follows, but there is nothing prescribed by law as to the
format of a will:
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testator declares his testamentary intention
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testator revokes previous wills
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testator nominates executors – if necessary trustees
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testator sets out any legacies / individual bequests
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testator directs / who is to inherit the residue / remainder
of his assets
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testator and witnesses attest to the will
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if you do not make a will you will die intestate and there is
a law which governs what happens to your assets.
All people, especially
those with minor children, should make a will directing what
must happen to their assets and how their children must by taken
care of after the parent dies.
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In order to
make a will and ensure it is correct in law it is advisable to
otain the assistance of any of the following:
Make sure you have provided for your
loved ones! |
An example of a will is included where a
man and woman are married without children.
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Mutual will of
testator married out of community of property; no children;
bequeathing estate to wife;
This
is the last will of me (name of testator), married out of
community of property to (name of spouse) presently domiciled
and resident at (specify)
- Revocation
I
revoke all previous wills made by me.
- Nomination
of executor
I nominate my said wife (name of spouse)
to be the executrix of this my will and estate with
the power of assumption.
1
.S 23 (2) (a)
of the Administration of Estates Act 66 of 1065 exempts
the surviving spouse of the testator from finding security.
3. Bequest
I bequeath my
entire estate to my said wife.
Signed
by me at (place) on (date) in the presence of the undersigned
witnesses all of us being present at the same time.
AS
WITNESSES:
________________________
________________________
________________________
(Signature of testator)
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If the will consists of more than one
page each page must be signed by the testator or someone signing
on his behalf. The
last page must be signed at he end of the will, by the testator
and the two witnesses: Wills Act S 2
(1) (a)
(iii) and
(iv).
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Butterworth
Forms and Precedents
Estates – Service Issue 1 1996 |