Financial Data
Updated 30 Sep 2020

What’s in a will?

One of the most important documents that you will ever have to draw up is a will. Most of what we do everyday is for those we love, but if we do not record what it is that should happen to our assets, including our business, the day we pass on, which can happen at any time, then much of what we have worked for will be in vain. 

Almo Lubowski, 06 July 2016  Share  0 comments  Print

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Whenever the topic of a will comes up I am reminded of a quote in a well-known South African case: 

"It is a 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. This is by no means a recent phenomena …the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice - ”Raubenheimer v Raubenheimer (560/2011) [2012] ZASCA 97 

I am sure you really meant to get around to updating your will after your divorce, the birth of your child, your big move or the start of your now-blossoming business, but you just haven't found the time yet. The right time, if any, is now. 

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Why even bother? 

One of the most common mistakes people make when considering a will is assuming that their estates are not worth enough to warrant it. We work so hard to accumulate assets for ourselves, when we are alive, and for our loved ones when we are no longer around to provide for them, but leave the distribution of the hard-earned wealth, to chance. 

Assets to consider that will be included in your estate are and need to be dealt with:

  • Life insurance policies
  • Immovable property (your house)
  • Movable property (your car)
  • Cash
  • Foreign assets
  • Your business shares. 

Your will is the document that gives dignity to your financial affairs and determines the proper distribution of your estate, when you are no longer here to do so.

As a business owner you need to consider what happens to your business share when you depart. The income of the business supports you and your family, but how will this continue when you are no longer around? A properly structured will is the first step in making sure your blood sweat and tears that have been poured into your business don’t go to waste.

There are additional strategies that you can put in place, but a good starting point would be your will, as it will always needs to tie up with any other strategy. 

Official -legal -will -signed -off

The practical steps

For a will to be valid, there must be absolute compliance with the requirements of the Wills Act and failing this it will be rejected by the Master, which may lead to a High Court Application to rectify what should have been done correctly in the first place.

Section 2(3) permits a court to direct the Master to accept a will or an amendment to a Will which does not comply with the requirements of the Wills Act but which a High Court is satisfied was drawn by the testator and clearly reflects the testator's intention to be his last Will or an amendment thereto. This is clearly an expensive solution and can quite easily be avoided by using a professional to assist with this important document.

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It is furthermore imperative that your will be updated on a periodic basis but especially when there is a change in your status such as:

  • A birth
  • A death
  • Marriage
  • Divorce. 

Proper storage of a will is also quite important, as the original will be required. The Master may only accept an original or a duplicate original will in terms of section 8 of the Administration of Estates Act.

A will is a letter of gratitude and love to those you leave behind so don’t compromise on this gift. 

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About the author

Almo Lubowski

Almo Lubowski, CFP read for his law degree (LLB) at the University of Pretoria. He subsequently qualified as an attorney and started practising law in Cape Town in 2003. In 2007 he read for his Postgraduate Diploma in Financial Planning at the University of Stellenbosch Business School and subsequently became a CFP® professional. Almo has practised as an attorney, financial planner and fiduciary specialist in his career, mostly working for his own account. He is CEO of The Fortune Group that specialises in financial and legal advice for business owners. Contact Details: [email protected]

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