Thabo Kgatle (Legal Assistant)
Testate succession is where a person has laid down in writing how his or her estate is to be distributed after he/she has passed on. The document in which the person instructs how his/her estate is to devolve after his/her death is referred to as a will. If the person wants to amend, add or alter his/her will, a document called codicil is then done to effect the necessary amendments, alterations or additions.
In terms of our law a will has to comply with certain stringent requirements in order for it to be valid. It is better to consult a professional for assistance in drafting a will. It is not advisable for a lay person to attempt to draft such a legal document which has far-reaching consequences.
It is further advisable to acquire the services of a professional to assist and advise you on estate planning before you draft your will.
A will is very important to secure the future and well-being of your family and loved ones. It should also be noted that your will can also assist you in forming a trust after your death. This aspect will be discussed in a later article where we discuss trust mortis causa and trust inter vivos.
In a situation where a person dies without having made a will or his/her will turns out to be invalid, the law of intestate succession comes into operation when his/her estate has to be administered. The law will identify the heirs to the deceased estate and distribute same to the said heirs.
It is very important to understand that our law provides a tried and tested formula which applies in the case where a person dies without a will or in the event his/her will turns out to be the invalid. This formula is based on the blood relationship between the deceased and his/her intestate heirs.
It should also be noted that it is possible for a person to die partly testate and partly intestate. Where a person makes a will which deals with part of the assets of the estate and fails to indicate what happens to the other assets not included in the will, such assets will devolve in terms of the law of intestate succession.
Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.