PROPERLY EXECUTING A WILL IS EXTREMELY IMPORTANT

I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will.  Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office.

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW DOES INHERITANCE WORK?

When someone dies they normally have what is called a ‘will’. The people who benefit from this ‘will’ are known as the heirs. Upon someone death, the heirs receive an ‘inheritance’. The person who administers the will of the deceased is called an ‘executor’.

What legislation affects inheritances?

South Africa’s inheritance laws apply to every person who owns property in South Africa.

The three main statutes governing inheritances in South Africa are:

  1. The Administration of Estates Act, which regulates the disposal of the deceased’s estates in South Africa;
  2. The Wills Act, which affects all testators with property in South Africa;
  3. The Intestate Succession Act, which governs the devolution of estates for all deceased persons who have property in the Republic and who die without a will.

All property located in South Africa is subject to these laws, and there are no separate laws for foreigners. Immoveable property is not treated any differently to other types of moveable assets for inheritance purposes. Inheritance issues of foreigners and South African citizens are primarily dealt with by the Master of the High Court; however, if a dispute arises, then the case can be heard in any High Court of South Africa.

Foreigners who acquire immovable property in South Africa through purchase or inheritance must register their transfer of ownership by registering a deed of transfer with the Registrar of Deeds in whose area the property is situated. The process of registering a deed of transfer is carried out by a conveyancer, or specialised lawyer, who acts upon a power of attorney granted by the owner of the property.

Tax and inheritance

In South Africa, there is no tax payable by the heirs who get an inheritance. Capital Gains Tax (CGT) is also not payable by the recipient of an inheritance. Estate Duty and CGT, where applicable, are usually payable by the estate. If it is a foreign estate, it will be subject to the taxes of its country of origin.

What about donations or gifts?

Donations and gifts are treated differently to inheritance. For individuals, donations are subject to a Donations Tax of 20%, with an annual exemption of up to R100,000 of the value of all donations made during the tax year.

  • Non-residents are not subject to Donations Tax. However, in cases where the resident donor transfers his property to a non-resident (donee), and the resident donor fails to pay the Donations Tax, the non-resident (donee) and the resident (donor) will be jointly and severally liable for the tax.
  • Donations between spouses are exempt from Donations Tax, as are donations made to certain public benefit organisations.

Reference

  • The South African Revenue Service (SARS)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

YOUR WILL AND FOREIGN ASSETS

Each country has its own legislation regarding inheritance and signing of wills. It would therefore be possible that your South African will does not comply with all the requirements of the country where your foreign assets are located. This may result in the non-inheritance of your foreign assets in terms of your last will and testament. It is therefore imperative that you should have two wills if you have foreign assets; one for your South African assets and one regarding your foreign assets according to the regulations of the country where these assets are located. It is always important to plan your estate carefully; should you have foreign assets, however, you must take extra care to ensure that you meet all the requirements of the relevant country’s legislation.

The aim with planning an estate is ultimately to reach your goals in the distribution of your assets and liabilities. These goals should make provision for the management of your estate during your lifetime, but also after your passing.

A further consequence of the increasing exposure to international investments is that South Africans are also exposed to foreign fiduciary services, including wills for their foreign assets.

Whether it is truly necessary to draw up a separate foreign will or just one global will depends on the following:

  • where your foreign assets are located;
  • the nature of the assets and the type of products in which these assets have been invested; and
  • who takes care of the administration of your foreign assets/investments.

Should your South African will be drawn up in Afrikaans, it may be necessary to have it translated and sealed before sending it to the foreign executor/agent. This could be time-consuming and very costly.

A separate foreign will also has other advantages: your foreign will is administered in line and simultaneously with your South African assets; an executor/agent who is familiar with the required procedures in the relevant country where your assets are located will save you time and money; and someone who draws up wills professionally within the jurisdiction of the relevant country can provide you with advice regarding the possible dangers in relation to tax accountability and hereditary succession when it comes to assets outside the borders of South Africa.

Although we would recommend drawing up a second will with reference to foreign assets, we suggest that, should there be any mention of foreign assets, your South African will must be drawn up in English and it should not pertinently refer to the fact that the document is only applicable to your South African assets.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)