At PW Harvey & Co, you will be able to meet with an individual face to face to discuss your wishes and to have those wishes formulated correctly into a valid will.

We can advise you on all aspects of your estate. Our goal is to determine your assets, establishing who the beneficiaries are and putting your wishes into a valid will, considering your financial and estate planning from beginning to end. You can be assured that the PW Harvey team have your best interests at heart.

It is important to note that there are two scenarios when one passes away in South Africa.

  1. Where the deceased died with a valid will in place (testate).
  2. Where the deceased passed away without having a valid will in place (intestate).

If one passes away without a will, the law of intestate succession will take place. The consequence to this is that the deceased’s family will inherit, after all the debt has been settled, the assets in accordance with the Intestate Succession Act 81 of 1987, which determines who the deceased’s heirs are and how they will inherit.

Freedom of testation is very important because this means that a testator’s wishes must be carried out as far as legally possible. A court of law will not lightly interfere with a testator’s wishes. We will have a look at this aspect in more detail below.

The requirements for a valid will are as follows:

  • A person must be over the age of 16
  • The will must be in writing
  • Each page of the will, including the last page, must be signed by the testator and must be signed by two competent witnesses

There are, however, lawful limitations placed on what a testator can bequeath to their heirs. Such limitations are usually in accordance with common law. If one or more of the following provisions are present in a will, it will not be executed:

  • General unlawfulness;
  • Goes against public policy and good morals;
  • Impracticably vague; or
  • Impossible.

A testator also has a common law duty to support his minor and financially dependent children.

A testamentary trust can be created, which will take effect upon the death of the testator. The will operates as a trust deed and will lay out all the terms of the trust. It is very important to note that the wording needs to be correct and if not, a trust either can’t be created or will not be able to be managed correctly to fulfil the objectives of the trust.

The recent judgment in Hanekom v Voigt 2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust, Eben Nel wrote: "The Testamentary Trust: Is it a Trust or a Will?” on 3 April 2018 and further stated that:

Within the confines of a valid will a testator may create a testamentary trust with the purpose of benefiting someone - either without transferring ownership and control of the assets, or with the transferring of ownership, but without control of the assets. Where ownership does not pass on to the beneficiary, the trustee becomes the owner of the asset, but only on behalf of the beneficiary. The bewind differs from the ownership trust in that the ownership of the trust assets vests in the beneficiary and not in the trustee, who manages and controls the assets. In the case of a bewind trust the assets vest in the estate of the beneficiary and are therefore at risk as far as the creditors of the beneficiary are concerned, and in the case of a minor beneficiary, assets may become detachable at the moment majority age is reached. Where the trust is not a bewind, the moment of accruing to the beneficiary and his/her becoming the owner thereof may often be postponed within the discretion of the trustees depending on the wording of the trust deed or will.
It is submitted that the particular approach by the court in Hanekom is encouraging, as it shows some sensitivity to the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will per se is to be welcomed and is not only a truer and more realistic reflection of the institution but also emphasises the sui generis nature of the trust figure.

It is important to have a valid will and that all of the testator’s wishes are covered. Provision can be made for your family (e.g. including grandchildren), by utilising a trust. Over time, a will should be updated to cater for changed circumstances.

If William Shakespeare had time to make a will and leave his wife their ‘second best bed’, then you should have the time to plan and draft a will with the assistance of the PW Harvey team.

 

Our Specialist

Carl Sponneck

Legal Advisor


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