When & Why To Amend My Will

A Will is an important document which gives expression to the testator’s[1] wishes on how his estate will devolve after death. A Will is a means of taking care of and providing for loved ones after death.

It is therefore important to regularly review the content of your Will to make sure that it aligns with your wishes. There are a number of occasions, other than changing one’s mind, where it becomes necessary to review and possibly amend a Will, three of which are covered here: a change in marital status, the birth or adoption of a child, and the death of a someone named in the Will.

A change in marital status

Getting married[2] is an exciting event where all the focus beforehand is on the preparation. Depending on the matrimonial regime chosen, there will be different outcomes at the end of the marriage, by either death or divorce. It is therefore important to have ‘review my Will’ or ‘create a new Will’ on the to-do list. To not make provision for the surviving spouse[3] in a Will when the marriage ends as a result of the death of one of the parties, can lead to unwanted and sometimes negative consequences.

For an example: should the parties be married out of community of property and not amend their Wills to make provision for the new spouse, it could result in the surviving spouse not receiving anything from the first-dying spouse’s estate.

At the end of a marriage due to divorce, the Wills Act 7 of 1953 provides that the ex-spouse shall be presumed as pre-deceased should a testator die within three months of the dissolution of the marriage. It is a principle in South African law that a beneficiary must be alive in order to inherit. Should the beneficiary not be alive at the time of death of the testator (or presumed as pre-deceased), then a named substitute beneficiary shall inherit. Failing a substitute, the bequest falls into the residue of the estate.

Should there be no residuary heirs then that inheritance will devolve in terms of the laws of intestate succession. The effect of this is that the ex-spouse cannot inherit under the Will within the three-month period, even if he/she is nominated as a beneficiary. After a lapse of the three months, an ex-spouse can inherit under the Will if it is left unchanged. Thus, it is important to review one’s Will to prevent unintended consequences.

At the birth or adoption of a child

There is no automatic right in South African law for children to inherit from their parents, unless the laws of intestate succession apply. Should the child not be included in the Will then that child will not inherit.

Therefore, at the birth or adoption of a child, one’s Will should be reviewed to make sure that that child is included. Further, the Will should be reviewed to appoint new guardians to take care of minor children in the event that no natural guardians are alive.

At the death of a person named in a Will

As an heir has to be alive in order to inherit, Wills should include named substitute beneficiaries. This means that if the primary named beneficiary in a Will dies, the substitute named beneficiary will inherit.  Therefore, when a named beneficiary dies it is necessary to review a Will to ensure that someone has been named to inherit, otherwise the rules of intestate succession apply.

 

Having a Will is vital, but maintaining and keeping your Will up to date is equally important. For this reason, GalileoWills makes reviewing and updating your Will convenient. Simply log in to your profile to make use of up to three free Will amendments.

 

[1] The reference to the one gender includes other genders.

[2] Marriage includes a civil Union and marriages in terms of customary law and religious rites.

[3] Spouse also includes a partner in a civil union and spouse(s) married in terms of customary law or religious rites.