National Will Register SARWT

South African

Registry of Wills and Testaments

Useful Info

 

Capacity to make a Will

The Wills Act provides that a person sixteen years or older mentally capable of appreciating the nature and effect of his act may make a Will.  backtotop ii

 

Collation

Collation is based on the presumption that testators wish to benefit their descendants equally. This presumption is rebuttable, and the testator should indicate in his or her will if he or she wishes to rebut this presumption. This is normally done by stating that a specific beneficiary should or should not collate. The only persons obliged to collate are the direct descendants of the deceased who are heirs ab intestato, or who would have been the deceased's intestate heirs had there been no Will. Collation takes place by operation of the law and consequently it is unnecessary to provide in the Will that heirs should collate. If the Testator does not wish collation to take place he must specifically say so, e.g. "There shall be no collation". If there is a likelihood of dispute or doubt as to what must be collated, this should be stated.  backtotop ii

 

Custody 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 his behalf. It is vital that your heirs can ascertain the existence and location of your Will, hence the importance of registering on this site.  backtotop ii

 

Divorced

Did you know that Section 2B of the Wills Act provides that if a person dies within three months after his marriage was dissolved, by divorce for instance, and had he executed a Will before date of dissolution of his marriage, that Will shall be implemented in the same manner as it would have been implemented as if his previous spouse has died before date of dissolution of the marriage unless the contrary appears form the Will (unless it appears from the Will that the Testator intended to benefit the spouse despite the dissolution of the marriage).  backtotop ii

 

Estate Duty

The Estate Duty Act provides that a levy shall be charged on the net value of a deceased person’s estate depending on the value of the estate, which shall be referred to as estate duty. Section 4A of the Act defines the dutiable amount of any estate as the net value of that estate, as determined in accordance with section 4 of the Act, less a so called abatement of R3,5 million.

Estate duty is a tax levied in respect of the estate of every person that died on or after 1 April 1955. Estate duty is currently levied at a rate of 20% of the dutiable amount of an estate. Estate Duty is a complex and intricate field, only included is a rudimentary definition for informational purposes only.  backtotop ii

 

Executor

The executor is nominated by the testator in his Will and appointed by the Master under letters of executorship and tasked with administering the deceased estate which entails settling accounts and distribution of the deceased’s estate assets (the residue thereof after accounting for liabilities) in accordance with the testator’s wishes.  backtotop ii

 

Executor Dative

Executors dative are appointed by the Master in various circumstances, inter alia where the deceased failed to nominate an executor in the Will, where the nominated executor fails to apply for appointment or, having been appointed, ceases to act.  In order to appoint an executor dative the Master normally follows a prescribed procedure which involves taking into consideration the views of all persons having a direct interest in the estate, and is obliged to give preference in making the appointment to certain persons, inter alia, the deceased’s surviving spouse.  backtotop ii

 

Executor’s Remuneration

The executor is entitled to remuneration fixed by a Will failing which the remuneration is determined according to a tariff. The tariff charge for the executor fee is 3.5% (plus VAT if applicable) of the gross value of the assets reflected in the liquidation account.  backtotop ii

 

Fideicommissa and Usufructs

Both a usufructuary and fiduciary have the use of property, usually for the duration of their lives, and in both cases there is a direction that the property is to be handed over to another party upon the happening of some event or the fulfilment of some condition. While both are entitled to the use of the property, neither is allowed to alienate or otherwise dissipate the property. The usufructuary and the fiduciary heir are entitled to use and enjoy the property and to take the fruits there from. The usufructuary can never acquire any greater right to the property. A fiduciary however may acquire absolute ownership of the property if the fideicommisary dies prior to the condition of vesting occurring.

Where the testator wishes his heir to enjoy full rights of ownership and the use of the estate in his lifetime, subject to the condition that whatever maybe left at his death should devolve upon somebody else, this can be done by way of a fideicommissum residui. In the absence of specific indications in the Will as to the extent of his powers of alienation, the fiduciary of the residui will be entitled to dispose of three-quarters of the estate during his lifetime, and is consequently obliged to transmit only one quarter of the property or its value to the fideicommissary.  backtotop ii

 

Foreign Will

Where someone who resided outside South Africa and had property both in his home country and in South Africa, has died, the estate will have been reported in his home country and his Will would then have been registered there. In terms of section 14(2)(a) of the Administration of Estates Act the Master may register and accept a copy of a Will of that deceased person provided the copy has been certified by a competent authority in the country or territory where the original Will is. Before the Master will accept the certified copy of the Will he requires a declaration under oath from the applicant in terms of section 22(2)(c) of the Administration of Estates Act that the estate has not been reported to any other Master’s office in South Africa. These and other prescribed requirements must be met before the Master will sign and seal letters of executorship granted in any other state.  backtotop ii

 

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 and needy 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 Act will in the event of disinheritance by the deceased spouse have a claim against his estate for one half of the accrual. Freedom of testation is limited also by certain statutory requirements.  backtotop ii

 

Guardian’s Fund

The guardian’s fund was first established in the Cape Colony in 1833 to provide for the administration and management of the estates and property of minors, lunatics and absentees, and for the proper care of the persons of minors and lunatics. It was controlled by the Master and all moneys received by him were paid into the credit of the guardian’s fund. This arrangement for dealing with moneys of minors, lunatics and absentees worked well and was taken over in the Administration of Estates Act of 1913. In the 1965 Act provision is made for the continued existence of the guardian’s fund.  backtotop ii

 

Heirs

The heirs succeed to the residue of the estate after the payment of administration expenses, debts, estate duty, maintenance and legacies where applicable.  backtotop ii

 

Importance of a Will

A Will is a crucial document as it reflects your wishes as to how your assets should be distributed on your passing.  If you do not have a Will, it is strongly recommended that you to rectify the situation without delay by having a Will drafted. Your Auditor, Attorney, Broker or any of the Financial Institutions can assist you in this regard.  backtotop ii

 

Interpretation of Wills

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. In general the language used in a Will must be construed in its ordinary grammatical and dictionary meaning.  backtotop ii

 

Intestate Succession

It is a set of legal rules regulating the disposition of the property/assets of a deceased person in the absence of a valid Will.  Intestacy occurs if the deceased has left no valid Will, or has made a disposition subject to a condition which fails, or an invalid disposition. There may be a partial intestacy where the deceased fails to dispose of the whole of his estate or where a beneficiary renounces his rights and no substitute has been provided by the testator, or in cases where there is no provision in the Will for the disposal of the residue of an estate remaining after legacies have been paid.  backtotop ii

 

Invalidity of Wills

A Will which is complete and regular on the face of it, that is, all the prescribed formalities have been complied with, is presumed to be valid until the contrary has been proved. The onus of proving the invalidity rests on the party so alleging and although the burden of proof is the same as in all civil cases the court will not easily set aside a Will.  backtotop ii

 

Joint or Mutual Wills

Any two or more persons can make a joint or mutual Will. The most common joint or mutual Will is made by spouses, but there is nothing to prevent two persons who are not married to each other from making a joint Will. Two sisters or two brothers or two persons not related to each other may make a joint Will and it is not uncommon for partners in a business or profession to make such a Will.  backtotop ii

 

Legacies Generally

A legacy is a specific asset 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 distributed. A legacy may also be left to a legatee subject to certain conditions.  Although legacies are paid before anything is due to the heir, the debts of the estate must be paid before anything accrues to the legatee(s). 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.  backtotop ii

 

Useful Links

Wills Act, 1953
Intestate Succession Act, 1987
Administration of Estates Act, 1965
Estate Duty Act, 1955
Department of Justice and Constitutional Development
Law Society of South Africa
Cape Law Society
Kwazulu-Natal Law Society
Law Society of the Free State
Law Society of the Northern Provinces
ProBono.Org
Organ Donor Foundation backtotop ii

 

Living Will

The law recognises a patient's right to decide whether he/she wants to live or die in certain situations by either accepting or denying life extending medical treatment.
Informed consent by a patient is required for any treatment. Patients who have executed a "Living Will" will have definite instructions regarding the type of treatment to which they will not consent, thereby exercising their legal prerogative to lay down limits to what may be done to them.  A Living Will is an advance directive in which a person expresses his/her directives by refusing consent to any medical treatment and attention which will keep him/her alive by artificial means when he/she is no longer competent to express his/her instructions. In South Africa there is no law regarding the validity of Living Wills.  backtotop ii

 

Massing

Where a joint or mutual Will of two people consolidates a portion or the whole of their two estates into a joint single estate and provides for the disposition thereof following the death of the survivor of the testators, the estates are said to be massed. Invariably the survivor receives a limited beneficial interest in the estate.The question often arises whether in fact there has been a massing. This depends on the intention of the testators as it appears from the wording of the Will. In case of doubt there is a presumption against massing. If a Will specifically provides for a conditional massing, effect must be given to it.  backtotop ii

 

Mortis Causa Trusts

A mortis causa trust can be a very useful instrument in a Will where the testator wishes to regulate the administration of a beneficiary's inheritance for a specific period, or for a specific reason, after the testator's death. For example, it may happen that the testator's heirs are still minors at the time of the testator's death. In order to avoid having the minors' portions being paid into the Guardian's Fund, the testator may wish to create a trust upon his death in order for his trustee(s) to administer the minors' portions until they reach the age of majority, or at some later date (many testators provide that the trust Will only capitalise on the beneficiary's 25th birthday). The advantage of a mortis causa trust is that the trustees will (normally) have the power to invest or reinvest the inheritance to the best possible advantage of the minor children. It is important to note that the clause in the Will in terms of which the trust is created, is in effect the trust deed of the trust, and must contain all the necessary powers and duties of the trustees. If these are not included in the will the trustees will be at a serious disadvantage, and may even be without the power to invest or reinvest the assets in the trust. Where a valid mortis causa trust has been created in a Will, the Master will register the trust once the nominated trustees have applied for their letters of authority to act as trustees of the trust in question. Mortis causa trusts are subject to the same requirements as inter vivos trusts when it comes to the registration thereof by the Master.  backtotop ii

 

Possessor of Property, Book or Document Belonging to the Deceased Estate

Any person who at or immediately after the death of any person has the possession or custody of any property, book or document belonging to, or in the possession or custody of the deceased at the time of his death must report to the Master the particulars thereof and may open a closed document in order to ascertain whether or not it is, or purports to be, a Will. The possessor or custodian is obliged, unless the court or Master otherwise directs, to retain such possession or custody until the appointment of an interim curator or executor and to surrender the property, book or document in question into the custody or control of such interim curator or executor aforesaid upon written demand by any of the latter. The temporary possessor or custodian may dispose of any property in his possession or custody in order to provide a suitable funeral for the deceased or subsistence for his family or household.  backtotop ii

 

Rectification

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.  backtotop ii

 

Security

The Master may dispense with security where the testator specifically directs him to do so.  Every executor must provide security to the satisfaction of the Master. If any default is made by the executor in the proper performance of his duties, the Master may enforce the security and recover from the executor or his sureties the loss to the estate. backtotop ii

 

Substitution

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.  backtotop ii

 

Testator/Testatrix

Testator (testatrix for the female) is the legal term used for the person making a Will.  backtotop ii

 

Updating a Will

A person’s Will should be updated regularly to incorporate changes in one’s financial situation and to make sure you provide and cater for your loved one’s needs as they tend to change over time.  Always consider a revision of your Will with the occurrence of a life event such as marriage, children, grandchildren, asset acquisitions for example buying a house, starting a business and divorce to name but a few.  backtotop ii

 

Variation

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.  backtotop ii

 

Will

A Will is a legal declaration by which a person, the testator, disposes of his property to take effect after his death. A Will can be changed by the testator as and when he so likes.  It is a private and confidential document which the testator cannot be ordered to produce.  backtotop ii

 

Will Heading

The Will will usually contain a heading citing the testator by his name and also by a pseudonym or alias or other name by which he is generally known. The Will must be identified as that of the deceased.  backtotop ii

 

Witnessing a Will

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. A witness must not have any direct or indirect interest in the Will he/she witnesses.  backtotop ii

 

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