Report by Tafadzwa Mungwadzi
It is often said that when a needle falls into a deep well, many people will look into the well, but few will be ready to go down after it. This phenomenon is true , especially at the time of death, when those who are interested in your estate will go down after the needle of wealth and scramble for whatever remains of your estate. While some may find consolation in the saying that there is no greater calamity than being consumed by greed, one will need to understand that dying without a will have dire consequences.
WHAT IS A WILL?
In simple terms, a will is a formal, signed, written document, in which a person voluntarily sets out his or her instructions in unambiguous terms as to how his or her assets are to devolve following his or her death. It is important to understand that for a will to be valid, it will need to comply with prescribed formalities. None compliance with prescribed formalities will result in a will being invalidated. When a will is invalidated, the person is deemed to have a died without a will. Courts have often decried the phenomenon of wills that have failed the compliance test. For one, in Raubenheiner vs Raubenheimer, the Supreme Court of South Africa expressed concerns in this regard and went on to posit that drafting invalid wills is not a recent phenomenon. In the words of the learned judge, “it is an never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign.” Against this backdrop, it is advisable that a person engages the services of a lawyer when drafting a will.
DYING WITH A VALID WILL
It is true that no matter how beautiful and well-crafted a coffin might look, it will not make anyone wish for death. However, the reality of life is that all humans will one day take their last breath on earth. Some have embraced the phenomenon that tomorrow belongs to the people who prepare for it today and have gone on to draft wills that will guide the distribution of their estate when they die. At law, a person who had a valid will at the time of his or her death is said to have died “testate”. This means that at the time of his or her death, there is a valid will that allows the testator to dispose of the whole or any part of his assets as he or she pleases. Wills can also create trusts, appoint trustees and administrators and can also regulate their powers where necessary. In some cases, wills appoint executors and guardians. It is also possible to make a will without naming beneficiaries, such as one in which a previous will is revoked, an executor appointed or an heir disinherited. A testator is a person who makes a valid will. Once drawn according to the testator’s instructions and approved by the testator, it should then be executed with all the formalities required by the laws of that specific country such as the Wills Act in Zimbabwe and South Africa.
OF GREEDY UNCLES AND AUNTS: DYING WITHOUT A WILL
If a person chooses not to draft a will or his or her will is found to be invalid, he or she will be deemed to have died intestate and the laws of intestate succession will determine the distribution of his assets. This means that his or her estate will be divided amongst the surviving spouse, children, parents or siblings according to a set formula. Many countries have specific laws that guide the distribution of assets in cases where the deceased did not have a valid will. In South Africa for one, the Intestate Succession Act 81 of 1987 is the bible used to distribute assets where a will was not present. The general process is that, when a person dies without a will, the government is tasked with the job of appointing an executor to his or her estate. The Master of the High Court may then appoint an Executor Dative to wind up this estate. The first job of the Executor Dative is to try to locate a will by making enquiries at places such as the deceased’s attorney, bank, accountant and insurers. If no will can be traced, the estate will be wound up as an intestate estate. It is important to bear in mind that where the deceased was married in community of property, one half of the estate belongs to the surviving spouse and will therefore not devolve according to the rules of intestate succession. Only the deceased’s half of the joint estate will be available for distribution amongst the heirs.
However, the consequences to the family of someone dying intestate are never ideal and can lead to heartache for those left behind. In most cases, the prescripts of interstate succession are never followed and it is often the greedy aunt or uncle who wants to oversee the distribution of assets. This is usually at the expense of surviving spouses and children. In some instances, the principle of male primogeniture is adopted. The male primogeniture rule is a customary law which states that only the elder legitimate son can inherit the deceased estate in exclusion of the other siblings. Many countries have abolished this sexist rule and one notable case is that of Bhe v Magistrate Khayelitsha where the South African Constitutional court held that the primogeniture rule is invalid and unconstitutional as it infringes on equality and human dignity and that it also discriminates against extra marital children.
SETTING UP A FAMILY TRUST
The best way to preserve ones assets and wealth is through the creation of a trust. A trust is a legal arrangement whereby control over property is transferred to a person or organization (the trustee) for the benefit of someone else who is otherwise known as the beneficiary. Trusts come in two forms, namely the inter-vivos trust and the testamentary trust. The inter-vivos trust is created between living persons, whereas the testamentary trust is derived from the valid will of a deceased person. The inter-vivos trust is registered with the Master of the High Court in whose area of jurisdiction the greatest portion of the trust assets are situated. On receipt of all the required documents, the Master of the High Court will issue the nominated trustees with letters of authority to administer the trust. Importantly, no trustee may act as such without the written authority of the Master of the High Court. Trustees are obliged by law to keep accurate financial statements to comply with their fiduciary obligations to the beneficiaries.
After all is said and done, one would need to understand that when you show the moon to a child, it sees only your finger. It is therefore important to preserve the future of the current and next generation. As the elders say, those who accomplish great things pay attention to little ones.
Gratias Tibi
Tafadzwa Mungwadzi is a lawyer who writes in his personal capacity. He can be contacted at info@tafmunglegalservices.africa, Tel +27 79 630 3884