SARWT on SABC1
SARWT was a guest on Shift, SABC 1. “Should I get a will?" as subject matter was discussed with studio guests supporting opposing views in the context of changing tradition and revised customary law.
The programme is available on SABC Education Shows’ YouTube channel: Shift 12 - Episode 62: Should I Get a Will? Available for viewing here. Language: vernacular. An English summary is available below.
Summary of Questions and Answers
SHIFT PROGRAMME ON SABC 1
TOPIC: Should I get a Will? (Wills and related matters)
Presenters: Kamohelo Bombe and Aaron Moloisi
Guests: Gift Xaba representing the South African Registry of Wills and Testaments, Mbuleli Kolisi – general legal practitioner, Nangamso Tshamlambo and Ntombikaylise Lesalaisa
PRESENTER: When we talk of a will, what is it that we talk about? In essence, what is a Will (last will)?
MBULELI KOLISI: A will is a very important document. We can call it a legal document which expresses one’s wishes as to what should happen to one’s assets or estate upon one’s death. It is very important in that it does not only cover and speak to your material assets only, but you can also nominate a guardian for your minor children in the will.
So when we talk of a will in a broader sense, it is not limited to material assets but can cover things such as guardianship and organ donation as well.
PRESENTER: A lot of people think that wills are for rich and wealthy people and for white people in particular, why this perception?
GIFT XABA: This is an unfortunate perception, it is just a fallacy in fact. This perception has cultural undertones. Black people previously did not see the need for a will. This was caused by their system of male primogeniture. For black people, the situation was already predetermined and it was already known that when a person dies, their firstborn male child will be the only heir of their estate. So with this, it was not necessary to have a will.
Secondly, when you drafted a will as a black person, your actions were seen as contrary to customs that connote and encouraged the male primogeniture customary practice. You were considered as a rebel, so to speak.
Thirdly, black people (and most people) generally does not want to talk about wills and inheritance related matters because these issues remind them of their immortality. There are people who think that making a will, will result in them dying soon thereafter.
Finally, I am glad to state that the customary law practice of male primogeniture was declared unconstitutional by the Constitutional Court in 2005. So, since 2005, within the black communities that were affected by this practice, everyone whether male or female or whether they first or last born, is eligible to inherit.
Also, you do not have to be rich to draw up a will, as long as you are 16 years or older and you believe that there are circumstances that make it necessary for you to plan for your estate and its devolution should you die, you can make a will.
PRESENTER: How important do you think a will is?
NTOMBIKAYISE: It is very important. For example for a couple who stay together but are not married. If the boyfriend unfortunately passes on, the boyfriend’s family can state that that they do not recognise the surviving girlfriend as she was not married to the deceased. These kind of situations can lead to inequities, especially if there are children involved and considerable assets.
So if you are in a relationship with someone but do not want to marry them, you can make a will and have them as one of the beneficiaries if you wish for them to inherit from your estate should you die. This is but one of many situations that demonstrates the importance of a will.
PRESENTER: What are the requirements to make a will?
GIFT XABA: In order to execute a valid will, you need to observe the following:
- There must be the intention to execute a will;
- The will must be in writing;
- The testator must be 16 years or older & mentally capable of appreciating the nature and consequences of his/her actions;
- The testator must sign the will in the presence of 2 witnesses; and
- The witnesses must be 14 years or older and capable of giving evidence in a court of law.
The above are the essential requirements of will making provided by section 2 & 3bis of the Wills Act, 1953.
PRESENTER: WHAT ARE THE DISADVANTAGES OF NOT HAVING A WILL?
GIFT XABA & MBULELI KOLISI: The disadvantages of dying without a will are that:
- You lose the power to give guidance or to instruct how your estate, something you have worked for all your life, should devolve;
- This may translate to a huge family dispute over who inherits; and
- You fail to safeguard the interest of your most vulnerable dependants and love ones, as their interests may not be well represented when your estate devolves intestate.
- Also this means that you fail to appoint an executor of your choice. This may lead to a massive family dispute over who should be appointed as the executor of your estate as family members usually are not unanimous about the appointed. A representative of the Master of the High Court will have to intervene which may necessitate mediation to resolve the issue which in turn takes a long period of time, can be costly and cumbersome. Also this may result in the winging up process of your estate being unreasonably protracted and incurring unnecessary costs.
Finally it is important to highlight that if you execute a will and that will gets lost, the position is that when you pass away it will be the same as if you do not have a will. So it is important that the place where you keep your will is recorded so that the will can be located when you pass on. So people should utilise the vital services of an institution like the South African Registry of Wills and Testaments (SARWT). SARWT also provides information regarding Wills and other related matters.
Programme first broadcasted on SABC 1, 12 May 2015
Available on SABC Education Shows’ YouTube channel: Shift 12 - Episode 62: Should I Get A Will?
A Word of Thanks
We would like to extend our gratitude to ProBono.Org, in particular Gift Xaba for representing SARWT on the show and providing an English translation summarising the Q&As.
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