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Q&A with Louis Nel from Mosdell Pama & Cox regarding Wills

Q&A with Louis Nel from Mosdell Pama & Cox regarding Wills

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WILLS & ESTATES

 

In the previous edition I dealt with questions and answers relating to intestacy.  Today I am touching on questions and answers regarding wills.

 

Q.        Is a will bought from a stationary shop and signed by the deceased valid?

A.        Yes – provided it complies with the requirements contained in the Law of Succession Act 43 of 1992 as amended and the Wills Act.   I would however strongly advise against buying a do-it-yourself will and suggest you consultant an attorney.

 

Q.        Once a will has been properly signed is it possible to change it later.

A.        Yes- the Wills Act lays down requirements to be complied with when wills are amended or when old wills are changed.

 

Q.        Who make a will?

A.        Any person of the age of 16 years or more may make a will unless he was at the time mentally incapable.

 

Q.        My father asked me to write out a will for him.  Can I inherit?

A.        Any person who writes out a will or part thereof in his own handwriting is disqualified from receiving any benefits under the will.  The will in not invalidated but the bequest is void.

 

Q.        I have a child born out of wedlock.  Can this child inherit from his father?

A.        The fact that a person was born out of wedlock shall be ignored in determining his relationship to the testator or another person for purposes of the will.  If a testator does not want this situation he should deal specifically with the matter in his will.  An adopted child is deemed to be a descendant of his adoptive parent or parents and not a descendant of his natural parent or parents.

 

Q.        It is correct that attorneys charge exorbitant fees to administer an estate?

A.        This is absolutely incorrect.  The fees are laid down by tariff and apply to all executors.

 

Enquiries can be directed to Louis Nel of Mosdell, Pama & Cox of Knysna at e-mail louisnel@mpc.law.za

 

 

 

 

 

 

WILLS & ESTATES

 

Q.        What is meant by per stirpes?

A.        This is a fancy latin term in common use in Wills and simply means a distribution by representation or families e.g. where a bequest is left to the issue per stirpes of A and B one half must be divided among the children of A and one half among the children of B.

 

Q.        Can a person die testate and intestate?

A.        Yes – For instance where a testator bequeaths one portion of his estate and omits to deal with the residue.  As I mentioned previously a will should be clear so rather than do it yourself consult an attorney will versed in the drafting of wills.

 

Q.        I am what is referred to as a “swallow” i.e. live in the U.K. and come to Knysna for the summer to play golf.  How are my assets dealt with?

A.        An executor is authorised to administer the “estate’ which is not defined.  In the ordinary sense estate includes all the assets of the deceased wherever situate.  A South African executor will not normally be able to deal with assets abroad and vice versa.  I suggest that all swallows ensure that they have a proper will relating to their assets in South Africa.

 

Q.        What is a joint will?

A.        This is simply a document containing the wills of two or more persons and is most frequently made by spouses married in community of property, but could be made by persons married out of community of property or persons not married to each other.

 

Q.        Is there a difference between a will and a codicil?

A.        Distinctions between the two do not really exist any longer.  What can be done by will can be done by codicil.  The distinction is really only one of nomenclature.  Every draftsman has his own style I prefer to redraft the entire will if possible so as to prevent the codicil becoming too cumbersome.

 

Q.        What is the difference between an heir and a legatee?

A.        A legatee is a person to whom the testator has bequeathed something specific.  An heir is a person who succeeds to the estate or a fractional portion of it after all debts have been paid i.e. he succeeds to the residue.

 

 

Enquiries can be directed to Louis Nel of Mosdell, Pama & Cox of Knysna at e-mail louisnel@mpc.law.za

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