FAQ about wills, living wills and powers of attorney

All you need to know if you’re contemplating updating your will, signing a living will or a power of attorney.

If you’re contemplating updating your will, signing a living will or have questions around a power of attorney, these answers to frequently asked questions may be of benefit to you.

How do I know if my will is valid?

Several strict criteria must be met for your will to be valid. Firstly, the person writing the will must be over the age of 16, and the will must be in writing (typed or handwritten). Each page of the will, including the last page, must be signed and dated by the testator and the testator’s signature must be made in the presence of two witnesses. The witnesses are required to sign the will on the last page. It is also important to ensure that your will is written in clear and unambiguous language, is dated and that you do not misuse any legal terms.

Who can witness my will?

Anyone age 14 years and older who is of sound mind can witness a will. The witnesses do not need to understand the contents of your will but must be able to confirm that the testator signed the will in their presence. It is advisable not to allow anyone who stands to benefit from your will to act as a witness as this can result in them being disqualified from inheriting.

Can I obtain power of attorney over my aged parent’s affairs?

The short answer is yes if your parent is physically disabled and unable to manage their affairs. If your parent is mentally incapacitated, your parent will not be able to sign a power of attorney. This is because a general power of attorney is only valid as long as the principal (i.e. your parent) is competent to act for himself and has contractual capacity. If your parent becomes incapable of acting on their behalf, such as in the case of dementia or Alzheimer’s disease, any power of attorney that was in place will automatically lapse and you (the agent) will lose all authority.

How do I manage the affairs of my mentally incapacitated parent?

Previously the only option available in cases of mental incapacity was the appointment by the high court of a curator bonis to manage the estate, although this is a particularly expensive and clumsy process. A more affordable and slightly less cumbersome option is to apply to the Master of the High Court for an administrator to be appointed to the estate in terms of the Mental Health Care Act in instances where a person is suffering from a mental illness or profound intellectual disability.

Must I include a testamentary trust in my will?

No, it is not essential to make provision for a testamentary trust in your will although there are certain circumstances where a testamentary trust can be an effective estate planning tool. For instance, if a testator intends bequeathing assets to his minor children, a testamentary trust is an excellent vehicle to house and protect the assets until the children are old enough to manage their affairs. A testamentary trust can also be used to house assets bequeathed to a spouse or special needs child. 

Is a living will legally binding?

A living will is effectively a declaration of your non-consent to artificial life support if you are unable to communicate your wishes when dying, bearing in mind that living wills are not yet recognised in South African statutory law. However, in terms of Section 12 of our Constitution, ‘everyone has the right to bodily and psychological integrity’, which includes the right to have control over one’s own body, and the law as such recognises a patient’s right to accept or decline treatment.

Can a doctor ignore a living will?

The purpose of a living will is to guide your family and doctors if you are in a medical state from which you cannot recover and are unable to make decisions. However, if your family or medical practitioners believe there is even the remotest chance of recovery, they can choose to ignore your living will. However, if there is no chance of recovery and a medical practitioner chooses to ignore your living will, it is best practice for him to refer you into the care of another doctor.

Do I need a separate will for my foreign assets?

Determining whether or not you require an offshore will for your foreign assets depends largely on the type of assets that you own and where the assets are located. If your only offshore asset is a bank account, investment account or life policy then, generally speaking, one will that deals with all worldwide assets should be sufficient. However, if you own foreign immovable property or have shares in an overseas company or businesses, you will likely need a foreign will to deal with these assets. 

What does per stirpes mean?

If you have a will, the Latin term per stirpes likely appears in your will. Per stirpes is a legal stipulation which requires that if one of your beneficiaries dies before you, her share of the inheritance will pass to her children. For example, your will makes provision for your son and daughter to inherit your estate in equal shares. If your son dies before you, your son’s share of your estate will pass on to his children.

Does freedom of testation mean I can choose who to leave my estate to?

Freedom of testation means that you can leave your assets to whoever you like, subject to a few limitations. Firstly, your estate has a common law obligation to support any minor and/or financially dependent children. In addition, your surviving spouse may have a claim against your estate for maintenance in terms of the Maintenance of Surviving Spouse Act. In terms of our law, partners who are married create a legal bond and a duty of support between them. If your surviving spouse is unable to maintain herself financially, she can claim against your estate for the provision of maintenance. In terms of the Pension Funds Act, you can nominate a beneficiary to your retirement fund although the final decision rests with the trustees of the fund. Your marital regime will also determine how you can leave your assets to your heirs in your will. People married in community of property have a joint estate in which they have undivided joint ownership of all the assets. You can therefore only determine what must happen to your 50% ownership of assets in your will. Your spouse will still retain their 50% ownership in the asset. If you are married with the accrual system, your spouse has a claim against your estate for 50% of the difference between the accruals (where their estate is the smaller of the two).

How do I choose an executor?

Whoever you appoint as executor will essentially step into your shoes and ensure that your estate is wound up correctly. In recent times there has been a move away from appointing large institutions as executors in favour of skilled fiduciary experts who provide the function as a professional service on a more personal basis. Winding up an estate is complex and requires legal, tax, financial and business acumen, as well as the ability to collaborate with beneficiaries, creditors, pension funds and family members. Beware of nominating multiple executors as the logistics of three or more people dealing with SARS and the Master’s Office can be an impossible task. Before appointing a family member, give careful consideration to their financial skills and know-how, while also taking into consideration the fact that they may be mourning and emotionally incapable of winding up your estate. Ideally, seek to appoint someone who is an expert in the field and who is capable of impartiality and objectivity.

Should I add a codicil or rewrite my entire will?

A codicil is essentially a schedule or annexure to your existing will and adding a codicil to your will is relatively easy to do. Bear in mind, however, that a codicil must comply with the same validity requirements as a will, although it does not need to be signed by the same witnesses who attested your will. Avoid adding too many codicils to your will as this can cause confusion and misinterpretation.

What the difference between an heir and legatee?

Heirs and legatees are people who inherit from a deceased person. An heir can inherit in terms of both testate and intestate succession, whereas a legatee is only able to inherit in terms of a valid will. In other words, a legatee is not a recognised beneficiary in terms of the law of intestate succession and will need to be specifically named as a beneficiary in the will of the deceased to inherit. For instance, if you bequeath a lump sum amount to your domestic worker, she would be considered a legatee. On the other hand, your minor child is considered an heir as she would be capable of inheriting from your estate in terms of both testate and intestate succession.

Where should I document my funeral and/or burial wishes?

It is advisable not to include your funeral and burial wishes in your will. In many instances, the will is only read after the funeral or burial service which could result in your wishes being unintentionally overlooked. Further, there is always the risk that your heirs have problems locating your will and therefore will not have insight into your wishes. Instead, consider documenting your funeral and burial wishes in a separate document, and asking a spouse, partner or loved one to keep the document safe.

How can I make provision for my special needs child?

A Special Trust Type A is a type of trust created solely for the benefit of a person with a mental or physical disability as set out in the Income Tax Act. A Special Trust Type A can either be a testamentary trust or an inter vivos trust set up to provide for a person who, as a result of their disability, is incapable of managing their financial affairs.