In the last three months the death rate due to Covid -19 has increased quite substantially.
It is always best to ensure you have a valid signed Will in place and that the original is stored in a safe place. The making of a will is:
“one of the most solemn and sacred juristic acts a person can perform. A will represents a person’s last wishes, and allows him to give expression to his gratitude towards, his sense of responsibility to and his concern for the welfare of those whom he leaves behind.”
– Rogers 1986 SALJ
Not having your affairs in order can become a ‘nightmare’ for your family to deal with, especially at a time when they already have so much else to cope with.
There are many who have signed a Will, but are unable to locate the original. To best explain the consequences, let’s look at a typical scenario below:
“My father passed away on the 11th of January 2021 and had drafted a Will when he was alive. The Will was drafted by ….. and he appointed ….. as the executor of the estate. We only have a copy at hand. The nominated executor advised that my dad never handed them the original and they are therefore unable to assist us.
My stepmother has been very uncooperative and will not let us know whether or not she reported the estate. Unfortunately, I live in a different province, which makes it difficult for me to find out on my own.
My stepmother refuses to acknowledge the Will, as it contains a few clauses that are not to her liking.
She has also been driving my dad’s cars which are now part of the estate and I believe they should not be driven. She has also been withdrawing money from his bank account. I have since notified the bank that my father is no longer alive and they have since frozen the account.
I would like to know what steps to take next”.
Sec 2(3) of the Wills Act states:
“ If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, as a will although it does not comply with all the formalities for the execution or amendment of will.”
One will therefore need to make a High Court application for the acceptance of the copy of the Will, which is a time consuming and costly exercise.
In the absence of a Court application or should the application to court not be successful, the estate will be distributed in accordance with the Law of Intestate Succession, which may not be the intention of the testator. Alternatively, the previous original Will is accepted as the deceased’s last Will, even though circumstances since then may have changed.
At PPS we can assist with the drafting of a valid will and offer a safe custody service for the storage of the drafted will.
Please contact us if you need assistance.