Why willsdatabase.com?

With advent of the digital age fraud has increased and therefore the chances of losing your hard-earned income. When you pass away this risk increases a hundred-fold as you are not there to defend yourself or to dispute a matter. This can have grave consequences for your loved ones due to loss of inheritance and/or distribution done not in accordance with your desire.

How does our services help you?

  • With a central registry, all information is centralized and the location of the last valid Will noted in a secure enviroment;
  • Upon your passing a family member can search from anywhere in the world to determine your registration;
  • On verification of death:
    1. All information will be passed on to the nominated executor only, thereby preventing interference and/or destruction of documents;
    2. All family and friends registered on the system will be notified at time of death;
    3. All businesses or businesses linked to your profile will be notified at time of death.

Why notify businesses at time of death?

The easiest time for fraud is when the person is deceased. Once you have passed away and your accounts are still open anybody that has access can purchase to their delight without restrictions. This can incur unnessary espenses on your estate and loss for your loved ones.

What is a Will?

A declaration of what a person wishes to happen to a person’s property after his/her death. The testator/trix must make a Will personally and he/she cannot delegate this authority to any other person.

What are the elements of a Will?

  1. Since a will reflects the testator’s intention concerning the devolution of his assets following his death, the date of execution is important especially in two respects:
    1. It is relevant in order to determine whether the will complies with all the formalities applicable at the time of execution and is, therefore, valid;
    2. It is relevant in order to determine the capacity of the testator and the witnesses at that time.
  2. A will takes effect on the death of the testator and, therefore, he may at any time before his death revoke his will.
  3. A beneficiary under a will has no more than a hope and any agreement in terms of which a testator purports not to revoke his will, is invalid. Furthermore, any agreement whereby the testator contracts with another to regulate the devolution of the estate after the death of the testator, is also invalid.

What is Execution of Wills under the Wills Act?

The execution of wills is governed by the Wills Act,1 and in terms of section 2(1)(a) no will executed after 1 January 1954 is valid unless it complies with all of the following provisions:

  1. It must be signed at the end immediately after the attestation clause should there be one, provided that there is no significant gap between the final paragraph of the will and the attestation clause thereof by the testator or by some other person in his presence and by his direction.
  2. Such signature must be made by the testator or by such other person or be acknowledged by the testator, and if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time.
  3. The witnesses referred to must be the same as those who have attested the testator’s signature at the end of the will and they must sign other than by the making of a mark.
  4. If the will consists of more than one page, each page other than the page on which it ends, must also be signed by the testator or by such other person anywhere on the page.
  5. If the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator, and if the will consists of more than one page, each page must also be signed, anywhere on the page, by the commissioner of oaths who so certifies; provided that the will is signed in the presence of the commissioner of oaths by the testator or his representative and the witnesses in each others’ presence and the certificate is made as soon as possible after the will has been signed.

The certificate should read as follows ” I (full names) …….. of (full address) ……. in my capacity of commissioner of oaths certify that I have satisfied myself as to the identity of the testator (full name) ……. and that the accompanying will is the will of the testator.
Signature (Commissioner of Oaths)
Place ………………………………..  Date ……………………………

Who has the Capacity to make a Will?

  1. Any person of the age of 16 years or over may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act. The burden of proof to show that he was mentally incapable at that time rests on the person alleging such incapacity.
  2. The incapacity of a person under the age of 16 years cannot be cured by the assistance of his guardian.

Who can Witness a Will?

  1. Every person who is over the age of 14 years and who, at the time he witnesses the will, is not incompetent to give evidence in a court of law is competent to witness a will.
  2. A witness cannot sign by making a mark but following the latest amendment initials by a witness do constitute a proper signature.

Who has the Capacity to benefit under a Will?

Subject to certain exceptions, all persons, including corporate bodies, may benefit under a will. The following persons are, however, disqualified from taking benefits:

  1. A person who has unduly influenced the testator to give him a benefit under the will.
  2. In Roman-Dutch law a guardian could not take a benefit under the will of his ward. It seems, however, that there is nothing to prevent a guardian from taking a benefit under his ward’s will if there is no suspicion of undue influence. It is submitted, however, that there is nothing to prevent a guardian from taking a benefit under his ward’s will if that ward is over the age of 21 years and if there is no suspicion of undue influence.
  3. A person who has written the will on behalf of the testator or the spouse of such person at the time of execution shall be disqualified from receiving any benefit under that will provided that:
    1. A court may disregard the disqualification if it is satisfied that the writer of the will or his spouse did not defraud or unduly influence the testator in the execution of the will; or
    2. that person or his spouse would have been intestate heirs provided that the value received in terms of the will does not exceed the value which would have been received by that person or his spouse in terms of the law of intestate succession.
  4. The appointment of a person as executor of the will is presumed to be a benefit and will, therefore fall under the foregoing requirement. (If, however, the testator himself by a superscription in his own writing confirms the benefit to the person who wrote the will this would presumably assist the court to disregard the statutory disqualification).
  5. A person who has married a minor without the minor having the necessary consent even if consent is obtained following the marriage.
  6. A person who is unworthy. In modern terms this includes:
    1. A person who has intentionally caused the death of the testator. This is in accordance with the maxim de bloedige hand en neemt geen erffenis, and clearly the person who murders another cannot take a benefit from the will of his victim. The same maxim applies also to the person who negligently caused the death of another irrespective of whether there is any moral blame. It is necessary for a causal connection to exist between the wrongful action and the potential benefit. Where there is no such causal connection for the death of the testator there is no disqualification.
    2. a person who has led another into an immoral life and indirectly caused the latter’s death;
    3. a person who has concealed the will of the testator.
  7. A person who witnesses a will or a person who was his spouse at the time of attestation unless a court declares the disqualified person competent to receive the proposed benefit or the disqualified person could have received the benefit in terms of the law of intestate succession had the testator died intestate, or if the will has been attested and signed by at least two other competent witnesses who do not receive any benefit from the will concerned.
  8. A divorcee under certain circumstances. If any person dies within three months after dissolution of his marriage by divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of the marriage.
  9. A posthumous child is presumed to be born when conceived if such a presumption is for its benefit. In the instance of a class bequest, that is, where beneficiaries are appointed as members of a class and not as individuals, for example, “my children” all children who were in esse at the time of death of the testator are presumed to be included as beneficiaries and will not be disqualified. Thus, as regards rights under a will, a child in utero is entitled to succeed if a bequest is made to the issue or children of a particular person even though it was born after such person’s death.

When is a Will Revoced?

  1. By later will – In general a testator may revoke any will made by him during his lifetime. The usual method of revoking a will is by making a later will. Such later will may expressly revoke an earlier will, but even if there is no express revocation, the later will, provided it is valid, revokes all provisions of an earlier will which are inconsistent with the provisions of the later will. Where a testator has died but left several properly executed wills they must as far as possible be read together and be reconciled.
  2. By codicil – A codicil is a testamentary disposition and thus also a will. Its purpose, however, is to supplement or to amend one or more clauses in the original will. A codicil, provided it is valid, will revoke any provisions of the original will which are inconsistent with the provisions of the codicil.
  3. By destruction – A will may also be revoked by the testator destroying it with the intention of revoking it. A will destroyed by some other person without the testator’s knowledge or against the testator’s wishes, will not be revoked. The destruction of the will must, therefore, be with intention, before it is revoked.A will which is known to have been in the possession of a testator and which cannot be found after his death is presumed to have been destroyed by him with the intention of revoking it.1 Such presumption can however be rebutted, the onus of proof being on the person who claims that the will has not been revoked.A will can also be destroyed by someone other than the testator provided that that person has been expressly authorized by the testator to so destroy the will.A will is partially destroyed if the testator deletes, defaces, destroys or cancels only a section or sections of the will provided that is his intention. If, however, the remaining portion or portions cannot be construed without those portions which have been deleted, defaced, destroyed or cancelled then the whole will is considered revoked.
  4. By marriage – The present position throughout the Republic of South Africa is that a subsequent marriage of a testator does not revoke an existing will.
  5. Ademption of legacy – A will can be said to be tacitly revoked in regard to a legacy or a bequest where the testator has voluntarily alienated the subject matter of the legacy or the bequest before his death and has not substituted something in its place.
  6. By erasure of signature – The testator erasing his signature, providing that by doing so he intends to revoke the will may revoke his will. Thus if he erases his signature while in a state of intoxication or insanity, the will is not revoked. If the testator’s signature is erased or obliterated without his knowledge and consent the will is not revoked.
  7. Conditional revocation – Where a testator stipulates a condition whereunder the will is revoked and the condition is not fulfilled then the revocation fails.

When can you Revive a revoked Will?

A will which has been revoked but which is still in existence may be validly revived by a subsequent will of the testator, which expressly revives the previously revoked will, but if the will has been destroyed it cannot be revived.

Who is the custodian of a Will?

The Master will ultimately, following the death of the testator, become the custodian of the will as it has to be registered by him. Since a will is a most important document it must be safely preserved during the life of the testator either by the testator or by someone or some institution on behalf of the testator. There are two refutable presumptions in our law relating to the destruction of a will which was known to have been in the possession of the testator at the time of his death, namely, that if the will has been destroyed by the testator, it is presumed that he destroyed it with the intention to revoke it and if the will having been in his possession cannot be traced amongst his other documents following his death it is also presumed that he destroyed it knowingly. As a result of these refutable presumptions the Master has in the past insisted on the lodgment of the original will at the time of the estate being reported to his office and had refused to accept copies of wills unless an order of court had been obtained The Master may for the purposes of the Act accept a duplicate of the original will.

What are the Contents of a Will?

  1. Freedom of testation – The general rule is that a testator has freedom of testation and can dispose of his entire estate as he pleases. His freedom of testation is, however, not unfettered and is subject to certain limitations, for example, bequests must not be illegal, against public policy or too vague or uncertain to be enforced; the testator has an obligation to maintain and educate his minor children and following payment of creditors this obligation ranks prior to legacies and bequests; a surviving spouse has a claim for maintenance against the estate of the first-dying spouse; a surviving spouse married out of community of property and subject to the accrual system created by the Matrimonial Property Act1 will in the event of disinherison by the deceased spouse have a claim against his estate for one half of the accrual.
  2. A testator can appoint beneficiaries who are either his heirs and/or legatees and guardians for minor children.
  3. He can also nominate executors and trustees.
  4. Bequests can be made subject to conditions such as modus or dependence on an uncertain future event.
  5. He can create trusts or limited benefits.

When do we refer to as a Minor?

A minor is, in accordance with South African law, an unmarried person who is under 21 years of age. Section 43 of the Administration of Estates Act1 provides for the situation of movable property to which minors are entitled and the general rule is that:

  1. the natural guardian of a minor shall, subject to the terms of the will, be entitled to receive the movable property to which the minor is entitled, for and on his behalf;
  2. no money is to be paid to the guardian unless a contrary direction is expressed in the will and the guardian has provided security to the Master’s satisfaction;
  3. where neither (1) nor (2) above is possible the inheritance of the minor is to be lodged with the Guardian’s Fund in the Master’s office pending the minor attaining majority.
  4. Immovable property can be registered in the name of the minor; however, it cannot be alienated or mortgaged without the authorization of the Court or the Master.
  5. Should the testator require a trust for the minor, it may be expedient for the benefits to be held in trust until the minor attains an age higher than majority if the testator is concerned about the minor’s ability to cope with the responsibility of a large inheritance.

What is a Legacy in general?

A legacy is a specific thing or a sum of money or some incorporeal right which a testator bequeaths to a person known as a legatee. The legatee differs from an heir under a will in that an heir is the person who succeeds to the estate of the testator (or to a fraction of such estate) after all debts and legacies have been paid.

The heir thus succeeds to the residue of the estate and is sometimes referred to as the residuary legatee. The residue of the estate may be left to a trustee to hold in trust for the ultimate beneficiaries or it may be left to a person for his lifetime and, after his death, to some other person. A legacy may also be left to a legatee subject to certain conditions.
To a certain extent the law relating to legatees is similar to the law relating to heirs, but in some respects the position of the legatee differs from that of the heir. The debts of an estate are deducted from the amount which would go to the heir. Although legacies are paid before anything is due to the heir, the debts of the estate must be paid before anything accrues to the legatees. It may be that after all debts have been paid there are not sufficient funds to pay all the legacies. In such a case the heir gets nothing and the legacies must be reduced, or as it is expressed,

When is legacies revoked?

A legacy, of course, may be revoked by a subsequent will or codicil, but it may fail automatically in certain cases. In general, a legacy fails if the legatee predeceases the testator unless the testator has provided for the substitution of another person.

However, section 24 of the General Law Amendment Act2 provides:
“Whether according to the terms of the will of a testator who dies after the date of commencement of this Act, a predeceased child of that testator would have become entitled to any benefit under that will if he had survived the testator, the lawful descendants of that child shall be entitled per stirpes to that benefit, unless the terms of the will indicate a contrary intention.”

Thus if a testator leaves a legacy to his son and the son dies, leaving children before the death of the testator, such children would be entitled to the legacy in equal shares unless the will showed a contrary intention.
A legacy would fail if the legatee was incompetent to take under the will, for example, if the legatee is a disqualified person apropos the testator or the estate.
If a specified thing is bequeathed as a legacy the loss or destruction of such thing during the lifetime of the testator will cause the legacy to fail.
Any acts of the testator, other than testamentary revocation, which show that the testator intended to revoke the legacy will cause the legacy to fail. A common example of this is where specific property bequeathed has been sold by the testator during his lifetime. The legacy in such a case is presumed to be revoked, unless it is clear that the testator was forced to sell through necessity.
A legacy will fail if the legatee refuses to accept the legacy. Once he has elected to refuse it, he cannot afterwards change his mind.
The mere fact that a testator has during his lifetime pledged the thing bequeathed does not show an intention to revoke and the legacy does not fail. It seems that the legatee would be entitled to the legacy free from the pledge. A legacy of a specific object, however, will fail if during his lifetime the testator donates it to a third party. In cases of any acts of the testator which would tend to show ademption of the legacy the question is always one of whether the testator had an intention to revoke. If the matter is left in doubt the legacy would remain valid.
Insolvency of the testator’s estate will also result in the failure of a legacy if after payment of all creditors nothing remains for the legatees. If some assets do remain but insufficient to cover all legacies, the principle of abatement will apply

A condition in a will that a legacy or an inheritance will be forfeited if the heir becomes insolvent will be invalid unless there is another person nominated as a beneficiary in the event of such insolvency.

Where there is such a condition in a will and the beneficiary becomes insolvent before the legacy vests in him and there was no gift over to a third party in the will, the trustee could sell the contingent rights of the benefit to a third party and the proceeds of the sale would be for the benefit of the beneficiary’s creditors.

A testator in his will may provide for an alternative heir or legatee in the event of the heir or legatee appointed being prevented from accepting the bequest or refusing it. Substitution may be either direct or fideicommissary. It is direct when an appointed beneficiary is unable to accept the benefit awarded, for example, if he predeceases the testator or is disqualified from receiving or refuses the benefit and some other person is nominated in his stead. It is a fideicommissary substitution when an appointed heir relinquishes his right to the benefit after a specific period of time has passed or on the fulfillment of some condition in favour of another nominated beneficiary. If there is any doubt as to whether a substitution is direct or fideicommissary the presumption is against it being a fideicommissary substitution.

What does Accrual mean?

The right of accrual is the right of joint beneficiaries to succeed proportionately to the benefit of one or more co-beneficiaries who could have received the inheritance but for some reason did not. In order to ascertain whether accrual is applicable the language of the will must be analysed to determine the testator’s intention. If the testator has provided for a substitution, accrual cannot come into operation. If the testator intends accrual to take place he should clearly express his intention and this is normally reflected in the manner in which the beneficiaries are joined.

What does Collation mean?

When descendants are entitled to share as heirs under the will of an ascendant they may be obliged to account to the estate of the deceased in regard to any property acquired by them from such ascendant during his lifetime. This inheritance as so augmented would then be distributed according to the will. This obligation is known as the obligation to collate or collation. The obligation also applies to intestate succession. Property previously given to an heir by the ascendant which must be collated includes anything given to an heir specifically as portion of his inheritance. Debts owing by the heir to the ascendant are not discharged by the death of the ascendant but must be paid to the estate of the ascendant for the purpose of distribution amongst all the heirs. Insolvency of an heir and his subsequent rehabilitation do not discharge his obligation to collate in respect of a debt to the ascendant testator incurred before insolvency.
Amongst property which must be collated are marriage gifts given by an ascendant to an heir of such ascendant. Gifts given for advancement of trade or business to the heir must also be collated.
Grandchildren who succeed as heirs to the grandfather as representatives per stirpes of their deceased father are obliged to collate advances received by their father from the testator. If, however, debts are due by the deceased father to the testator, it seems that the executor of the grandfather’s estate must, before calling on the children to collate, show that he was not able to recover such amounts from the estate of the deceased father.

What is Rectification and how does it apply to a Will?

An obvious mistake in a will may be corrected by the High Court, but the court is in general reluctant to alter a will unless there is clear evidence of a mistake and the will is not a true reflection of the testator’s intention. The onus of proof is on the person who seeks to rectify the will and extrinsic evidence will be necessary

When is Variation allowed?

The High Court has power in exceptional circumstances to allow a variation of a will, but such power is very limited. There would be exceptional circumstances where the bequest would fail if the variation were not allowed, or where conditions have changed considerably since the testator’s death and could not have been foreseen by him.

What does Interpretation of a Will mean?

The golden rule for the interpretation of wills is to ascertain the wishes of the testator from the language used. The wishes of the testator, as clearly and fully expressed in the will, must be given effect to.

This golden or fundamental rule for the interpretation of wills is sometimes difficult to apply because the language used by the testator is sometimes not clear. In such a case the court will have recourse to legal presumptions. It is important that the will be construed as a whole and each provision must be considered. Sometimes a printed form is used as a basis for a will and written words are inserted. In such a case both the printed and the written words are to be considered but if there is a contradiction between the two the written words are the effective ones.

Interpretation of expressions in Wills for the following:

“children” Until the passing of the General Law Amendment Act,2 the term “children” in a will did not include grandchildren unless the context of the will showed that the testator had intended to benefit his grandchildren.3 Section 24 of that Act provides, however, that wherever, according to the terms of the will of a testator, a predeceased child of that testator would have become entitled to any benefit under that will if he had survived the testator, the lawful descendants of that child will be entitled per stirpes to that benefit, unless the terms of that will indicate a contrary intention. Section 24 has been repealed by section 1 of the Law of Succession Amendment Act4 and in terms of the new section 2C(2) of the Wills Act a similar provision has been added which has a far wider impact.
The term “child” or “children” now also includes illegitimate children. Section 2D(1)(b) of the Wills Act provides that the fact that any person is born out of wedlock shall be ignored in determining his relationship to the testator or another person for the purposes of a will.
Adopted children are for all purposes in law deemed to be the legitimate children of their adoptive parents and not descendants of their natural parents. An adopted child is consequently considered to be a natural child of his adoptive parents.5

“executor” person who is appointed by the maker of a will to carry out the terms of the will.

“issue” The term “issue” normally means children and further descendants. Although the term “issue” means all descendants, the terms of a will might show that, by use of that word, the testator intended it to mean children only.

“next of kin” By using such expressions as “next of kin” or “nearest relation” in a will the testator would be presumed to have intended the person or persons who would have succeeded to his estate if he had died intestate.

“desire”, “wish” The words “desire” and/or “wish” have been held to be both precatory and mandatory, depending on the context.

per stirpes The term “per stirpes,” means a distribution by representation. For example, if a bequest is made in favour of A, B and C in equal shares or their issue per stirpes, then if A or B or C has predeceased the testator leaving children, those children will take the one-third share which their parent would have taken had he or she survived to take a vested interest.

“cash” The word “cash” does not include money invested on fixed deposit.

“living will” is a declaration or an advance directive in which a patient expresses his/her directives by refusing consent to any medical treatment and attention which will keep him alive by artificial means when he is no longer competent to express his instructions.
In South Africa there is at present no law regarding the validity of “living wills” but the South African Law Commission is currently investigating “The rights of the terminally ill patient” and its recommendations could possibly lead to legislation in the foreseeable future. In the meantime SAVES (the Living Will Society), founded in 1974 in Natal, encourages people who feel that it is pointless to keep them alive by artificial means, to provide for this exigency by way of a living will. The Living Will Society suggests that three copies of the living will be signed by the patient whilst alive in the presence of two witnesses. These copies of the living will should not be kept in a safe custody box and should not be attached to the person’s last will as this document is often only read after the person’s death. One copy of the living will should be lodged with the patient’s doctor after full discussion of the contents so that the doctor understands his patient’s directives in advance of the possible need. Two copies should be kept at home in a safe place for easy access by someone other than the ill person: one being one’s own personal copy and the second one being for inclusion on an in-patient file should the need for hospitalisation in a hospital, nursing home or hospice arise.

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