Wills & Testaments

Description of a Will / Testament and formal requirements:

A Will/Testament can be defined as a written document in which a testator voluntarily sets out his instructions as to how his assets are to devolve following his death.

The execution of wills are governed by the Wills Act, which determines that a will must comply with the following formalities:

• It must be in writing;

• It must be signed at the end thereof by the testator or by some other person in his presence and by his direction:

• Such signature must be made by the testator or by such 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;

• Such witness must attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence of such other person;

• 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;

• If the will is signed by the testator by making 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 as signed is the will of the testator and if the will consists of more than one page, each page must be signed also by the commissioner of oaths who so certifies.

Who can make a will / testament:

Any person aged sixteen years or older can make a will if he/she is mentally capable of appreciating the nature and effect of his act.

Factors to be taken into account when drawing up a will:

A few factors have to be kept in mind when drawing up a will:

• Marital Status of the person drawing up the will;

• Children of the testator and their ages;

• Guardian to be appointed for minor children;

• The approximate value of the estate and what it consists of;

• Whether the testator wants to benefit;

• - Any relatives or friends besides the spouse and children;

• - Any charity or other similar institution;

• If the value of the estate is considerable, whether creating a trust could be beneficial;

• If there are minor beneficiaries, the advantages of a trust;

• The executor and/or trustees of the estate/trust;

• Whether the executor and/or trustees are to furnish security to the Master;

• Whether children should benefit equally;

• Whether there should be a delay in the vesting of an inheritance to any of the beneficiaries;

• If a beneficiary should predecease him/her, who is to be the alternative beneficiary;

• Whether he / she has or is likely to give any child a gift of some substance and if so whether he requires such child to collate the gift;

• If he / she has immovable property, whether there are any mortgage bonds registered against property and if so how the mortgage bonds are to be settled;

• If any portion of the estate is to be held in trust, what powers are to be given to the trustees and the trustees should deal with income and/or capital of the estate;

• Whether he / she wishes any conditions to be attached to a legacy.

Functions of an executor:

Immediately upon the death of the testator, the Executor have to:

• Take possession of the whole of the deceased's estate;

• Complete reporting documents and submit it to the Master of the High Court, such as Inventory of Assets, Death Notice, etc.

• Publish in the Government Gazette and in one or more newspapers circulating in the district where the deceased ordinarily resided at the time of his death, a notice calling upon all persons having claims against the estate to lodge them within a stated period;

• If the Executor disputes or doubts the validity of the claim he may require the claimant to support it by affidavit, or, with the consent of the Master, to appear before the Master or a magistrate to be examined under oath in connection with the claim, which may be rejected if the claimant fails to co-operate;

• Open a bank account in the name of the estate;

• Determine whether or not the estate is solvent, if insolvent, report it to the Master;

• Proceed with the realisation of the estate and carrying out the provisions of the will;

• Transfer property to the heirs appointed;

• Sell property if it needs to be sold;

• If the heirs are minor, deal with the property as directed by the Administration of Estates Act and the directions of the Master;

• Draw up a Liquidation - and Distribution Account who has to be lodged with the Master as well as the Magistrate's Court and lie open for inspection by interested parties;

• Advertise the Liquidation and Distribution Account in the Government Gazette and one or more newspapers in the area;

• The Liquidation and Distribution Account must disclose the assets and proceeds of the assets realised, the manner of their realisation, values of assets not realised and the manner in which it should be realised and distributed. Income accrued to the estate since the death should be shown separately and transferred to the distribution account. Expenses and creditor's claims also have to be shown;

• If no heir or creditor has made objection to the account, and if the Master is satisfied with the Liquidation and Distribution Account, payment of creditors and distribution to heirs can take place;

• Close the bank account;

• Receive a discharge from the Master of the High Court.