September is Wills Month in South Africa, a time when the importance of having a valid will is highlighted. During this month, two types of stories often emerge: how simple it is to sign a will and how much people misunderstand about what a will actually controls. The gap between these two realities causes most disputes, delays, and shortfalls that land on an executor's desk. According to Sanjith Hannuman, a wills expert, understanding the legal position behind common misconceptions is crucial.
One common misconception is that leaving a spouse "50% of my estate" gives them half. However, if the couple is married in community of property, the joint estate splits automatically, with 50% already belonging to the surviving spouse. A will that bequeaths "50% of my estate" to a surviving spouse without specifying which estate can lead to unintended consequences. For example, it can leave the spouse with 75% of the total estate, not 50%, and other beneficiaries receive correspondingly less.
Another misconception is that an ex-spouse falls out of a will automatically after divorce. However, under section 2B of the Wills Act, a will made before divorce is treated as if the former spouse died before the testator, but only if the testator dies within three months of the divorce. If the testator dies after three months, an unamended will can still benefit the ex-spouse. Additionally, debts do not disappear when a person dies; creditors are settled before any heir inherits, and assets may need to be sold.
Many people also misunderstand how a will interacts with other financial arrangements. For example, a will does not decide who gets a pension or retirement annuity, as death benefits from a retirement fund fall under section 37C of the Pension Funds Act. The fund trustees, not the will, identify dependants and decide the distribution. Similarly, life insurance and retirement annuities do not always go to the estate, especially if a beneficiary has been nominated on the policy.
Some people believe that they do not need a will if they do not own much. However, an estate can include a home, vehicle, bank accounts, and personal belongings. For parents, guardianship arrangements alone justify a will, regardless of asset value. Furthermore, minors cannot inherit directly and manage an inheritance themselves; a testamentary trust or guardian's fund arrangement is necessary.
Informal understandings about inheritance are not enforceable, and family members may recall conversations differently. Only a validly executed will binds an executor. Additionally, a will should be reviewed after major life events, such as marriage, divorce, births, and deaths of beneficiaries, as these can make an old will legally valid but practically wrong.
Finally, having a will does not mean that a family's work is done. A will does not tell anyone where it is kept, who the executor is, or what documents exist. Families should know these details in advance, without needing every clause disclosed early. During Wills Month, it is essential to remember that a free will is not the same as a properly considered will.
Key points
- A will is a crucial document that speaks for a person when they can no longer do so.
- Common misconceptions about wills can lead to disputes, delays, and shortfalls.
- Understanding the legal position behind common misconceptions is essential for creating a valid will.
