A will is your instructions to the person who will do the administration of the estate on
how to handle all your assets which you have and it also contains arrangements on
how to distribute your estate.
If you do not have a will it can lead to a delay in the administration of the estate and
it can also increase costs.
If you do not have a will, your estate will then devolve in accordance to the Intestate
Succession Act 1987 and this can lead to results which was not your intention. The
only way to protect your minor children inheritances is by way of a testamentary trust
which can only be done in your will.
Your will can not just simply express your wishes, it must also state your
intention to make a will. Without the requisite Animus Testandi (the intention of
having a will) the will can be declared as invalid. The testator’s will must
express his own free will, which means there must be no undue influence,
fraud or coercion. These factors can be the result of an invalid will.
If the will does not comply with the formalities of a will in terms of Section 2(3)
of the Wills Act, the will can be declared as invalid. If you have an invalid will,
the estate will be distributed according to the formula set out in the Intestate
Succession Act, 1987 (Act 81 of 1987), which means the estate will not be
distributed according to the testator’s last wishes.
Any natural person is capable of inheriting from an estate. Any major person
who is not insolvent, does not repudiate the inheritance and who is mentally
sound will be able to exercise unrestricted enjoyment of the inheritance from
your estate. A minor person has the capacity to inherit, but their ability to enjoy
the inheritance of the estate is restricted.
The inheritance of the minor will be administered, for the benefit of the minor,
by an appointed guardian or curator and the Master of the High Court. The
Guardian of the minor must ensure that all movable and immovable property
is used for the benefit of the minor, or kept safe for the minor’s future use. The
Administration of Estates Act requires that funds be placed into a Guardian’s
Fund, which will be administered by the Master of the High Court if the
deceased died intestate with no testamentary trust.
A testamentary trust also known as a trust mortis causa, is often created by a
testator to provide for the needs of dependants and at the same time protects
the assets for the benefit of the heirs. Having a testamentary trust will insure
that the testator’s assets are protected for the sole benefit of the dependants.