Are All Your Affairs In Order?
By “Awake!” correspondent in South Africa
IT WAS too late to ask questions when her husband died unexpectedly from a heart attack. The estate was in chaos. Nobody really knew where to begin. Formerly unknown creditors began making an appearance. The experience of this South African housewife well illustrates the importance of having one’s affairs in order.
There is good reason for seeing to it that surviving dependents are left with a clear picture of their financial position and an up-to-date will outlining the distribution of assets.
While laws differ from country to country, there always is some provision for the orderly distribution of assets to the heirs of the deceased. In certain African tribes, a senior member of the family usually administers distribution of the possessions. However, where distribution is to be made through the courts, a legal declaration made by the individual prior to his death outlines what should be done with his property. This declaration becomes his will. Should there be no will at the time of his death, any assets he may leave behind will be distributed in the way prescribed by the local laws of succession. This could result in loss to the heirs or undue delays in receiving their share of the inheritance.
A will based on the prevailing laws of the country is known as a statutory will. When drafting such a will, a person designates an executor. If approved by the court, the executor will distribute and administer the estate as outlined in the will. In the event that liabilities exceed the assets, creditors usually are compensated on a pro rata basis. A statutory will must satisfy all legal formalities. Even a minor departure could jeopardize the validity of such a will. Hence, when making a will, a person needs to keep in mind just what the courts would consider.
The legal authority must establish beyond any doubt that the document is the bona fide will of the testator. Such confirmation rests on the validity of the testator’s signature. To this end, witnesses must have signed the will in one another’s presence, thereby confirming that the document is genuine and, to their best knowledge, represents the will of the testator.
The legality of the will itself may come into question. Have additions or deletions been made on the original document? If so, the law will doubtless require that the signatures of the testator and witnesses appear at amendments and on each page.
As long as a testator is alive, he can, of course, revoke his will. This cannot be done orally, but usually is accomplished by drafting a new will.
The making of a will can become a complex task, especially where a number of parties are involved or where benefits from investments or fixed property are to be executed in a specific way. Hence, it is very wise to seek competent assistance.
An untrained eye may not see that the wording could give rise to legal problems or that certain necessary procedures have been overlooked. The layman may not know all the factors that would call into question the competency of the testator and the witnesses. For example, the law may restrict the age of a testator and may indicate what would make a testator mentally incapable of drafting a will. To avoid any collusion and abuse, the law may stipulate that a witness cannot be a beneficiary in the will. Besides being precluded from any benefits, a witness or his spouse may be disqualified as an executor, administrator, trustee or guardian. In South African law, the person who writes or types the will is likewise disqualified from being a beneficiary, unless the will bears a special endorsement that states otherwise.
In view of such requirements, the signing of any document is not a perfunctory service. A responsible attitude should cause one to consider very carefully the implications and consequences of putting one’s name on paper.
Another factor that should be considered is whether a will is up-to-date. Even the best of wills are of little value when they no longer fit the facts. Circumstances change and a will should be amended or revised to meet the new requirements. This is especially so whenever remarriage takes place. Adequate provision should be made for dependents. When a will is revised, it is best to destroy former ones.
A will is a valuable document and should, therefore, be kept in a safe place. A lost will is technically nonexistent and could mean tragedy for dependents. So, it would be advantageous to have more than one copy. A copy could be filed with an attorney or bank and another copy kept with important documents elsewhere.
Besides the will, insurance policies, marriage certificates, title deeds and other documents have a direct bearing on an estate. Would it not be good to keep all these documents together or at least to have a list indicating where they are located?
It may be very practical to list all principal assets—real and movable property—and also any liabilities. Precise knowledge of liabilities may protect dependents from exploitation. Not to be overlooked are insurance, orphanage and medical-aid policies, also guardianship documents. Without divulging its contents, such a list might be left with a confidential friend or in a place that would be accessible in a time of emergency. And for the benefit of the executor there should be a list of known relatives and their addresses.
Surely there is great value in having one’s affairs in order. Such orderliness can prevent chaos at a time when persons are least likely to cope with it successfully.
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LAST WILL AND TESTAMENT OF