As a small business owner, what will happen when you die?
What happens to your family?
What happens to your business?
The first step is to draw up a will. If you want to direct how your personal property, money and possessions are to be divided among your family when you die, you need to have a valid will.
Small business owners need to plan their estate more carefully than the average person does.
The first step is to draw up a will. If you want to direct how your personal property, money and possessions are to be divided among your family when you die, you need to have a valid will. Otherwise, if you die intestate (without a will), your property is divided according to the laws of intestate succession – a process that can take years and often costs a lot of money. In this article, we look at the requirements for drafting a valid will.
The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. The requirements are straightforward but even a meaningless oversight may make the entire document invalid. Having said that, courts have the power to condone a will that does not comply with all the formalities to try to avoid situations that may frustrate the testator’s (person who makes a will) good intentions.
Still, it is always advisable to abide by all the requirements in order to avoid any complications and delays.
Here are some of the basic requirements for drafting a valid will for the testator, who is a person who has written and executed a last will and testament that is in effect at the time of his/her death:
- The testator must be older than 16 years of age.
- The testator must be mentally capable of understanding the consequences of his or her actions at the time that the will was drafted. Wills or provisions that are proven to be drafted under duress, undue influence or by mistake will be invalid.
- The will must be in writing. It can be handwritten or printed – just make sure it’s clear and don’t forget to put your name on it.
- The testator must sign at the end of the will. While the act is not clear in this regard, it is recommended that the signature be placed just below or as near as possible to the last line of the will. A significant gap between the last line of the will and a testator’s signature might cause a will to be declared invalid. Furthermore, the following methods of signature are sometimes necessary when the testator is paralysed or is too ill to sign:
* A testator may request a person to sign on his or her behalf. In such an event, the signature must be made in the presence of the testator, at least two competent witnesses, and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages.
* A testator may sign a will by making a mark or a thumbprint in the presence of at least two competent witnesses and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages. Witnesses may not sign by making a mark or thumbprint.
- If the will is longer than one page, the testator (or someone on his or her behalf) must also sign every other page of the will, anywhere on the page.
- The testator’s signature on the last page must be made or acknowledged in the presence of two competent witnesses who are present at the same time. According to Section 1 of the Wills Act, a competent witness is anyone over the age of 14 who is of sound mind and capable of understanding the consequences of his or her actions and can testify in court.
- The witnesses must sign the last page of the will. The signatures can be made anywhere on the last page, but it is recommended that they are made below or as near as possible to the last line of the will. The witnesses’ role is to witness the signature of the testator or the person signing on the testator’s behalf. It is therefore not necessary for the witnesses to read the will. For additional evidential value, it is recommended that the witnesses add an attestation (evidence or proof of something) clause along the following lines: “We, X and Y, hereby confirm the signature of testator Z and declare that we have signed the will of Z on DATE in the presence of one another and of Z.
- Although it is not a legal requirement, it is recommended that the witnesses also sign every other page of the will.
- A beneficiary or executor should not sign a will as a witness. If they do, they may be disqualified from inheriting under the will. The validity of the will, however, will not be affected.
- While it is not a formal requirement for validity, it is highly recommended to date your last will and testament to avoid any confusion in the case that more than one will is found.
This document can be drawn up by an attorney of law, a certified bank official or it can be completed using one of many templates available online. The important part is that you have your last will and testament certified by a legal entity in order for it to be valid in a court of law.
Once all the documentation is drawn up and finalised, make sure you place it in a secure place where it can be easily found when you pass on.