CHAPTER 4

Wills A will is the only way in which a testator can ensure that his estate will be divided according to his wishes after his death. If there is no valid will at the time of his death, his estate will simply be inherited according to intestate rules, even though they may be impractical or unreasonable. In this chapter it will inter alia be shown what a will should contain, the different kinds of wills that can be drawn up and which legal rules must be obeyed for a will to be valid. It is essential that you should have knowledge of these aspects because the necessity of a valid will cannot be stressed enough. You must not draw up a will for a client. It is the work of persons and institutions (such as trust companies, attorneys and banks) who specifically render this service. They must also ensure that a will is valid and is signed correctly. (At Sanlam this work is done by Sanlam Trust and marketers/advisors are allowed to draw up standard wills by making use of a computer programme. Such a standard will may however under no circumstances be amended by the marketer.) 1. NECESSITY OF A WILL A will can be defined as a legal document in which is recorded the free and independent wishes of the testator in respect of the distribution of the assets in his estate. It follows that a stipulation made by the testator under duress or improper influence will be invalid. We cannot overstress the need to have a valid will. It goes further than that - it is necessary for every person to have an up-to-date will. If a person dies without a valid will, or with a valid will but without an heir and/or executor, or with an outdated valid will, the following problems may arise: An executor has to be appointed - a time-consuming process. Intestate succession can be impractical and takes place according to a fixed pattern. Wishes expressed during lifetime cannot be effected. Inconvenience and unpleasant situations regarding heirs could arise. Assets cannot be distributed until all the rules regarding intestate succession have been adhered to. Persons who you would have preferred not to inherit from you, could inherit. Situations regarding family (e.g. new heirs could have been born) or assets (new assets, other assets disposed of) may have changed radically. The costs involved in drawing up a will do not amount to much; in fact in some instances, this service is even provided free of charge. 2. WHEN DOES A WILL COME INTO FORCE? A will only comes into force on the death of the testator when the validity thereof has been accepted by the Master of the High Court. The testator may amend or revoke his will as often as he pleases during his lifetime. Where two or more people have drawn up a "joint" will, one of them may even draw up a single will, revoking his part of the joint will, and expressing new wishes in the single will. It is important to remember that death does not necessarily validate a "massing" will (refer par. 4.3). The survivor can revoke or repudiate his part of such a will. The "massing" will is then the will of the deceased only. If a survivor repudiates his part of the "massing" will, he forfeits any benefits that he may have received from such a will. If, however, he adiates (accepts) the benefits from a "massing" will he is bound to transfer his property according to the will. A survivor will have to draw up a new will after the first deceased's death.

3.

VALIDITY To be accepted as a legally valid document, the will must satisfy the requirements of the Wills Act (Act 7 of 1953) and the Common law.

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3.1 3.1.1

Legal capacity of those involved The testator To be able to make a valid will, the testator must be 16 years or older be of sound mind at the time of signing the will not act under duress or improper influence see to it that the will is duly signed. The testator is responsible for keeping the will in a safe place and arranging for it to be found after his death. If the will cannot be found, it is assumed that the testator has revoked the will and the estate will be distributed in accordance with the principles of intestate succession.

3.1.2

The witnesses A witness to a will must be at least 14 years of age and must be competent to testify in a court of law. The will must be signed by two witnesses. Witnesses must, however, take care not to sign merely on request, particularly if they are related to the testator. Any person, or his spouse, signing a will as witness, thereby forfeits any inheritance that he or his spouse could obtain under the will, nor would their heirs be able to inherit via them. A designation as executor, trustee or guardian in a will will be rendered null and void if such a designated person or his spouse signs the will as witness. The following exceptions (sect. 4A), however, apply: (a) The court may declare such a person or his spouse competent if the court is convinced that such person or his spouse did not deceive or influence the testator in an improper manner. (b) Such a person or his spouse, who would have been entitled to inherit from the testator in terms of the laws of intestate succession if the testator had died intestate, will not be disqualified from receiving a benefit in terms of such will, provided that the value of such benefit received by such person or his spouse does not exceed the value of the portion to which the person or his wife would have been entitled under the laws of intestate succession. (c) A person or his spouse who signed and attested to a will, is not disqualified from receiving a benefit from the will, provided that the will is also signed and attested to by two other competent witnesses, who themselves receive no benefit in terms of the will. The testator must sign the will in the presence of the two witnesses or acknowledge in their presence that the signature is his. It is not necessary for the witnesses to know that the document that is signed is a will. They merely acknowledge that the signature is that of the testator and that at the time of the signing he was of sound mind and not acting under duress.

3.1.3

The heirs No formal requirements are set with regard to who qualifies as heir. References to "a child" in a will, includes adopted children, even though the adoption order is made after the date on which the adopting parent drew up the will. In the event of persons with children born from more than one marriage, it is important to indicate when referring to "our children" whether children from a previous marriage of the testator or testatrix are included. The fact that a person had been born out of wedlock is not taken into consideration in the determination of his relationship to the testator or to that of another person for the purposes of the will. The executor and/or trustee The testator may nominate virtually any person or institution (e.g.a trust company, bank, lawyer, etc.) as an executor and/or trustee in his will. The Master of the High Court must approve of such a person and must ratify his appointment. If the surviving spouse is nominated as executor and does not have sufficient knowledge to administer the estate personally, he/she may appoint a trust company, bank, lawyer or accountant, as proxy to administer the estate on his/her behalf. However, in this case the executor remains fully accountable. (Sanlams own sales staff may act as executors only with the written consent of Sanlam. However, such persons may act as executors with the power of assumption in the event of the death of a direct relative such as a parent, spouse or child.) You as intermediary will often be expected to advise the client with regard to the question: Whom should I nominate as executor? It is the duty of the executor (or agent of the executor) to administer the estate in accordance with the stipulations of the will and, in executing this duty, to look after the best interests of the heirs. The executor (or agent of the executor) therefore has a great responsibility and the choice of a person to fulfil this role should not be taken lightly. The first choice is often to nominate the spouse as executor in the will. The question is whether this is the best or correct choice. The Master of the High Court will appoint the spouse as executor, but the spouse may not have the ability to administer the estate and, as mentioned previously, an agent will have to be appointed to do so on behalf of the spouse. In the case of this option a number of potential problems must be considered:

3.1.4

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The death of a loved one is an emotional event and not everyone is able to make important financial decisions (e.g. who should act as agent) when he/she is grieving. Without the necessary knowledge the spouse may not know where to obtain the best service or advice. The spouse may be exposed to someone who is acting in his own interest, in which case the cheque book of the estate could fall into the wrong hands, without the heirs having any security. The duties of the executor sometimes entail more than merely the administration of the estate and could entail the administration of a trust over a much longer term. The spouse might die at the same time or shortly after the first deceased and this would result in a delay in the administration process and the winding up of the estate. This argument applies to any natural person nominated as executor, e.g. a lawyer, auditor or other relative.

Given the above, the intermediary has an important role to play in advising his client with regard to making this choice. Nominating Sanlam Trust as executor has the following advantages for both the heirs and the intermediary: They have the benefit of a reliable trust companys knowledge of wills, estates, trusts and related matters. As a result of this specialisation the service is highly professional, the conduct objective and confidential and the task is completed quickly and efficiently - factors that are important, especially when it comes to the administration and winding up of an estate. Sanlam Trust is backed by the greater Sanlam and its infrastructure, and consequently specialist knowledge in other fields can be obtained. Sanlam Trusts sophisticated computer system ensures the intermediary and his client of the very best service and the benefit of the latest technology. Sanlam Trust offers continuity. Unlike in the case of a spouse, brother, lawyer or auditor that has been nominated as executor, the leave/death of an official will not result in a delay in the winding up of the estate. Sanlam Trust has a head office for any possible complaints. Do not underestimate this advantage. Along with this, the internal monitoring and control offer the client extra security. Good service to the client is thus guaranteed. Research is conducted on an ongoing basis in order to keep the staff of Sanlam Trust abreast of the latest developments in their field that could, for example, necessitate amending a will or calculating estate duty. The interests of the intermediary are protected and he is able to * enhance his professional image; * expand his practice; * retain his client base, and, best of all, earn some of the best commission (as far as estate commission is concerned) in the field. 3.1.5 3.2 3.2.1 Guardians Any person over the age of 18 may be nominated as a guardian of minor children in a will. Signing Ordinary cases Each separate page must be signed by the testator. Initials or a mark may be used instead of a full signature, but the making of a mark requires additional procedures. (Sec. 1 - see 3.2.2 hereunder.) In the case of a will which covers more than one page, only the last page needs to be signed by the witnesses. Initials (but not a mark) may be used instead of a full signature. (Sec. 2.) (In order to obviate confusion and mistakes, it is recommended that the testator and two witnesses sign each page in full.) Every codicil or amendment to the will must be ratified by the testator and the witnesses by signing in each other's presence. Other witnesses may ratify any subsequent amendment to the will. The place where and the date on which the will was signed should be stated on the last page of the will. The same applies in respect of each codicil. 3.2.2 Exceptional cases To accommodate persons who cannot write, the Act prescribes that the testator may sign the will by way of a cross or may request someone to sign on his behalf and in his presence. The signing must take place in the presence of a Commissioner of Oaths who must certify that he has been satisfied as to the identity of the testator and that the signed will is in fact the will of the testator. The certificate may be attached to any page, but the Commissioner of Oaths must sign each page. The Commissioner of Oaths may not also be a witness to the same will.

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3.3

Judicial discretion If the court of law is satisfied that a document or the amendment of a document which was drawn up or executed by a person who has since died, was meant to be his will or an amendment to his will, the court of law can direct the Master to accept that document, or the document as amended, for the purposes of the Administration of Estates Act, even though all the formal requirements for the execution or amendment of a will had not been adhered to. General The question may arise whether it is possible to render an incompetent person competent to draw up a valid will. There is, for example, no means by which a child who is under 16 or a person who is incompetent, can make a valid will. Their assets must be divided according to intestate succession (unless the incompetent person executed a valid will when he/she was competent in the past). This makes it all the more necessary for those who are competent, not to neglect to make a valid will. A person who is competent today may not be so tomorrow and then it will be too late.

3.4

4.

FRAMEWORK OF A WILL Under this heading we furnish certain information or certain clauses of a will. This is done only to make matters clear. The following is the framework and sequence of a typical will with a brief description.

4.1

Identification of parties involved Regarding the testator/testatrix the following is needed: Full names and identity number. In the case of a married woman, divorcee or widow her maiden name should also be furnished. Marital status, e.g. unmarried, married in community of property, divorced, widow, etc. The present address (postal address or home address) of the testator. Draft wording The wording of a will made by one person differs from that used when two persons make a joint will. (i) Singly "I, ...................................... (.................................), hereby revoke all previous wills, codicils and other testamentary writings and declare this to be my last will and testament." (ii) Jointly "We, ............................................. (.................................) and ................................... (born .......................) (.........................), married in community of property, hereby revoke all wills, codicils and other testamentary writings previously made by us, jointly or singly, and declare the following to be our last will and testament." or more simply "We, ......................................(.........................................) and .................................. (born ......................) (............................), married out of community of property, hereby revoke all wills, codicils and other testamentary writings previously made by us, jointly or singly, and declare the following to be our last will and testament.

(iii)

Note: The above examples (i) to (iii) are also sufficient for one universal will in respect of all South African and foreign assets (see 5.6 hereunder). 4.2 Revocation clause It is important that the testator, when making a new will, should revoke all previous wills, codicils, or any other document of a testamentary nature that he may previously have made individually or jointly with someone else, if it is his intention that they should be revoked. If he fails to do this, the provisions of such previous documents remain in force, and they will be read together with the new will. If there are contradictory provisions in an old and a new will, the provisions of the latter will apply. If a new will omits reference to assets bequeathed in an older will, the stipulation in the old will, as it concerns those assets, can still be valid. The testator can also of course destroy a previous will, which will then not exist at his death. If a testator dies within three months from the date of his divorce or annulment of his marriage, his will shall be interpreted as though his former spouse had died before the dissolution of the marriage. However, should the testator have clearly indicated in his will that his former spouse must benefit despite the dissolution of the marriage, his wishes will be carried into effect. (Sec. 2B.)

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Draft wording "I hereby revoke all previous wills, codicils and testamentary writings and declare this to be my last will and testament." Note: At Sanlam Trust, the revocation clause is incorporated in the preamble. Revocation of one of the separate wills for South African or foreign assets If you have made two separate wills in which you have clearly stated that one is for your South African assets and one is for your foreign assets, and you want to draw up a new one for your South African assets, it is important to state that it revokes only the previous will in respect of your South African assets and also applies only to your South African assets. If you do not do this and revoke all previous wills, the will in respect of your foreign assets, or vice versa, will also be revoked, unless it is your intention to revoke both and have only one universal will. If you have only one will in respect of your South African and foreign assets, the revocation will not hold any risks. Draft wording "I hereby revoke all previous wills, codicils and testamentary writings pertaining to my South African assets and declare this to be my last will and testament in respect of my South African assets." or "I hereby revoke all previous wills, codicils and testamentary writings pertaining to my foreign assets outside South Africa and declare this to be my last will and testament in respect of my foreign assets." 4.3 Massing It sometimes happens that two or more persons - usually two spouses - may decide that their separate estates (in or out of community of property) should be massed as one unit on the death of the firstdying and distributed among their heirs, the survivor to retain a limited right, for instance, a usufruct. Or they may mass only certain assets - immovable property, for instance. If this is intended, it should be clearly stated in the will, otherwise it may be necessary to go to court to interpret the will. If married in community of property, it should also be clearly stated whether their separate estates or joint estate are massed and in the case of separate estates (in or out of community of property) whether benefits directly payable outside the massed estate (e.g proceeds of policies, or only certain policies, directly payable to surviving spouse) are included, or not. Draft wording The wording will depend on the circumstances. (i) "We hereby mass our separate estates, excluding proceeds of insurance policies directly payable to the survivor of us, into one consolidated whole on the death of the first-dying of us, and we bequeath our massed estate as follows: ......................" or (ii) "We hereby mass our separate estates, including proceeds of insurance policies directly payable to the survivor of us, into one consolidated whole on the death of the first-dying of us, and we bequeath our massed estate as follows: ......................" or (iii) "We hereby mass our joint estate into one consolidated whole on the death of the first-dying of us, and we bequeath our massed estate as follows: ......................" or (iv) "We hereby mass our estates in respect of only our immovable property, on the death of the firstdying of us, and we bequeath as follows: ........................" 4.4 Executor An executor should be nominated, and there should also clearly be stipulated whether he is exempted from furnishing security. The Master have the last say in appointing the executor. It is wise to include a substitution clause in the clause nominating an executor, as very often the nominated person is unable or unwilling to accept the appointment. Draft wording "I nominate my wife [Spouse name], together with SANLAM TRUST LIMITED, or the survivor of them to be the Executors of my estate and I direct the Master of the High Court to dispense with security by the said Executors, or remaining Executor. My estate must be administered by the said Trust Company at their then applicable official tariff. The Executors will be entitled to invest with and to make use of the other services of SANLAM TRUST LIMITED and its subsidiaries and associated companies, who may charge their usual fees for such services." An executor must always furnish security if he is not the parent, spouse or child of the deceased. However, this can be excluded expressly in the will as stated above.

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4.5

Legacies (Also see paragraph 2 of chapter 10.) A legacy is a preferential bequest of specific assets before other inheritances (for instance, the residue of the entire estate) can be taken into account. There is also a pre-legacy which is regarded as one having priority over an ordinary legacy. Such bequests are usually stated first of all when inheritances are detailed in the will. The importance of the distinction between a legacy/prelacy and the residue of the estate is that, should a cash shortfall in the estate arise, the residue must first be used before the legacy/prelacy will be reduced proportionately. Therefore, if the testator wishes to ensure that a specific heir inherits a specific asset, it should preferably be bequeathed beforehand as a legacy and not as part of the residue of the estate. Draft wording (i) "I (we) bequeath the following legacies: ....................." or (ii) (a) I bequeath to my son, JOHN DOE, my farm, Sweetwaters, as a pre-legacy. (b) I bequeath to my daughter, ANN DOE, my residential fixed property (c) I bequeath the residue of my estate to.. .

4.6

Inheritances (Also see paragraph 2 of chapter 10.) After the bequest of legacies has been detailed, the distribution of ordinary inheritances is set out. The inheritances will come out of the residue (balance) of the estate, after legacies (if any) have been distributed. Draft wording (i) "I bequeath the residue of my estate to my wife, [Spouse Name]." or if no legacies: I bequeath my estate to my spouse . "Should my wife die before me, simultaneously with me or within 30 (Thirth) days after me, I revoke the bequest to her and bequeath the residue of my estate to my children. The inheritance of a child who predeceases me must devolve upon his or her descendants by representation per stirpes and failing descendants, upon my remaining children or their descendants by representation per stirpes." or if no legacies: "Should my wife die before me, simultaneously with me or within 30 (Thirth) days after me, I revoke the bequest to her and bequeath my estate to my children. The inheritance of a child who predeceases me must devolve upon his or her descendants by representation per stirpes and failing descendants, upon my remaining children or their descendants by representation per stirpes." (ii) "We appoint the survivor of us to be the sole heir/heiress of the residue of the estate of the firstdying of us. "Should we however die simultaneously or within 30 (Thirty) days of each other, the bequest above must lapse and we then appoint our children to be the heirs of the residue of our separate estates. The inheritance of a child who does not survive the survivor of us, must devolve upon his/her descendants by representation, per stirpes and failing descendants, then on the remaining children or their descendants by representation, per stirpes." or if no legacies: "We appoint the survivor of us to be the sole heir/heiress of the estate of the first-dying of us. "Should we however die simultaneously or within 30 (Thirty) days of each other, the bequest above must lapse and we then appoint our children to be the heirs of our separate estates. The inheritance of a child who does not survive the survivor of us, must devolve upon his/her descendants by representation, per stirpes and failing descendants, then on the remaining children or their descendants by representation, per stirpes."

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4.7

Trustee If the appointment of a trustee is necessary (e.g. at the creation of a trust) he should be nominated in the will, and here it must also be stated whether he is to be exempt from furnishing security if that is the testator's wish. Sometimes the same person and/or institution act as executor of the estate and trustee (of the trust). Draft wording "I nominate and appoint [Relationship], [Name of party], together with SANLAM TRUST LIMITED, or the survivor of them, to be the Executors of my estate and Trustees of any trust herein created and I direct the Master of the High Court to dispense with security by the Executors and Trustees, or survivor of them, for the proper performance of their duties. My estate and any trust must be administered by the said Trust Company at their then applicable official tariff. The Executors and Trustees will be entitled to invest with and to make use of the other services of SANLAM TRUST LIMITED and its subsidiaries and associated companies, who may charge their usual fees for such services."

4.8

Collation All descendants (except legatees, usufructuaries, fiduciaries) of a deceased (who are heirs of the testator or who would have been intestate heirs in the absence of a will) are under the obligation to take into account, amongst others, cash or property or goods they received as part of their inheritance or to establish them in the business world, in respect of their inheritances (called collation). If it is the testator's wish that collation should not take place, he must state this in his will. Such donations are therefore not taken into account at all when the estate is distributed. Draft wording "It will not be necessary for my daughter KAREN to collate any amount with regard to the R10000 I have donated to her." or We direct that our beneficiaries will not be required to collate any donations made to them during our lifetime.

4.9

Security Where a cash amount or movable property due to a minor or unborn child is subject to a usufruct or fiduciary right, security will be required except when explicitly stipulated otherwise in the will. The law does not lay down any stipulations regarding the nature of the security and the Master normally requires a deed of surety ship or a mortgage bond. It regularly happens that wills do not contain stipulations in this regard and that security is then required but cannot be provided. Where applicable, the will must explicitly stipulate that the usufructuary, for example, is exempted from furnishing security. Every executor must provide security to the satisfaction of the Master if he is not the parent, spouse or child of the deceased. However, this can be excluded expressly in the will as stated above.. Maintenance A divorce order can stipulate that a party's maintenance obligation will continue even after his death in which case he must make such provision in his will (e.g. by the creation of a trust and referring to such obligation). If he neglects to do this, bequests to heirs can be put at risk as the executor will have to set aside capital for the payment of the maintenance. For further stipulations in this regard, refer to chapter 19 where the Maintenance of Surviving Spouses Act is discussed.

4.10

4.11

Right of revocation It is customary to include in a will a clause in which the testator reserves the right to alter the will or to replace it by another. Such a provision is not necessary, because even without it the testator has the right to revoke his will. It must be emphasized that the testator is not married to his will, he can revoke it at any time during his lifetime. Where there is no written revocation all the previous wills of the deceased will apply. A later will in conflict with an earlier will, by implication, revokes the earlier provision on the assumption that the later will represents the testators last wishes. Clauses that are not inconsistent with each other or in conflict with each other, will apply. A testator may also revoke his will by destroying the will, provided that the act of destruction is intended to revoke the will.

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4.12

Amending a will Amendments to a will must comply with the same requirements for a valid will. The witnesses who signed the original will are not obliged to sign the amended will. Amending the will after divorce A bequest to divorced spouse in a will which was made prior the divorce, will not necessarily fall away after divorce. The Wills Act stipulates that, except where the testator expressly provide otherwise, a bequest to a divorced spouse will be deemed revoked if the testator die within three months of the divorce. This provision is to allow a divorced person a period of three months to amend his/her will after the trauma of a divorce.

4.12.1

4.13

Conclusion To conclude the will, the place and date of signing is added at the end, as are the spaces (on each page) where the testator and the witnesses must sign in accordance with the rules of the law detailed earlier in this chapter. (The date and place of signature is a critically important issue [albeit not a requirement for the validity thereof], as the latest dated will, will be deemed to be the vallid will, in an instance where more than one will is in existence.) Draft wording "SIGNED at ..................................... on this .............. day of ...................... 20.......... in the presence of each of us and in the presence of the undersigned witnesses, who both signed in our presence and in the presence of each other." WITNESSES: 1. 2. ............................... ............................... .............................. TESTATOR .............................. TESTATRIX

4.14

SanTrust computor programme A computor programme for standard wills, like the SanTrust of Sanlam Trust, is available to intermediaries to enable them to draw up wills for clients. It has, inter alia, an option available, whereby wills can be drawn up free of charge. (see 5.5) TYPES OF WILLS The single will This is the type of will in which a person - married or unmarried - makes his own separate will. The same provisions as in FRAMEWORK OF A WILL are embodied in this type of will. Bequests also follow the same pattern. The joint and mutual will Any two or more persons, who are legally entitled to draw up a will, may embody their separate wills in one document. Each one has then in fact drawn up his or her own will. It is not necessary for the testator(s) to nominate any of the others as a beneficiary. Such a will needs, notwithstanding the number of testators, only two witnesses, provided all the testators sign at the same time. If not, two witnesses must be present and sign the will for each testator who signs separately. Each person can make quite different bequests and can revoke or amend his will without referring to the other testator. Draft wording "I, the testatrix, bequeath my estate as follows: .............................." "I, the testator, bequeath my estate as follows: ..............................." When two testators want to bequeath their property in the same way (for instance where they designate each other as sole heir) there is no need first to determine what is to happen on the death of the one party and then to repeat the process on the death of the other party. In such a case it is enough merely to state the position on the death of the first deceased, whichever it may be. Such a document is referred to as a mutual will.

5. 5.1

5.2

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Draft wording "We bequeath the estate of the first-dying of us, to the survivor of us." Where the testators designate each other as the heir of the first deceased i.e. a mutual will, the joint will is the will of such deceased only. In other matters the joint will may be the will of the first and last deceased. It is particularly important that we should realise that on the death of the first-dying the joint will comes into effect and has to be administered in conformity with the wishes of the first-dying. If the joint will is the will of only the first deceased, the survivor no longer has a valid will and is intestate until he makes a new valid will. Provision should be made for the simultaneous deaths of the testators. This also applies to two other forms of will (the single and "massing" will, and the "massing" will). These problems can be dealt with in various ways. The examples below illustrate the position and can be applied to any or all of the four kinds of wills which we consider here: Draft wording Example 1 "If I, the testator, is the first-dying of us, I bequeath my estate as follows: .................. (state who inherits what). Should die before me, simultaneously with me or within 30 (Thirty) days after me, I revoke the bequest(s) above and bequeath my estate as follows: ....................... (state who inherits now)." Example 2 "I bequeath my estate (or the residue of my estate) to my spouse, JOAN DOE (born DEE). If my wife die before me, simultaneous with me or within 30 (Thirty) days after me, I revoke the bequest to her and bequeath my estate as follows: ................................" Example 3 "We appoint the survivor of us to be the sole heir/heiress of the estate of the first-dying of us." "Should we however die simultaneously or within 30 (Thirty) days of each other, we revoke the bequest above and appoint our children as heirs of our separate estates. The inheritance of a child who predeceases the survivor of us must devolve upon such child's issue by representation, per stirpes, and failing issue, upon our remining children or their issue by representation, per stirpes." Example 4 "Should I, JOAN DOE (born DEE), be the first-dying, I bequeath my estate as follows: ............................... If I, JOHN DOE, should be the first-dying, we stipulate that our estates shall be massed, and we bequeath our massed assets as follows: ................................... If we, the testators, should die simultaneous or within 30 (Thirty) days of each other, or if the survivor should die before having executed a written adiation of our joint will, we revoke clauses [Clause Numbers] and we each bequeath our separate estates as follows: ..................................." 5.3 The "massing" will In this case also, two or more persons - usually two spouses - feature as testators in the same will. Here they direct that their estates (or certain assets only) are to be massed on the death of whoever of them dies first. They then bequeath the massed assets. It is normally the case that for massing the assets be bequeathed subject to a limited interest to the survivor. The choice of heirs need not be the same on the death of either: the arrangement of distribution of the assets if the wife is the first-dying, can be quite different from that laid down if the husband dies first. Draft wording Example 1 "We hereby mass our estates into one consolidated whole and direct that it must be administered and distributed as one massed estate." "If the testator is the first-dying of us, we bequeath our massed estate as follows: [Particulars]" "If the testatrix is the first-dying of us, we bequeath our massed estate as follows:[Particulars]"

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Example 2 "We hereby mass our estates into one consolidated whole on the death of the first-dying, and we bequeath our massed estate as follows: ..........................." Example 3 In terms of a further variation of a "massing" will, one of the parties (usually two spouses) stipulates what is to become of his assets should he be the first-dying. After this, they proceed to stipulate that, should the other die first, their separate estates are to be massed. Draft wording "If I, JOAN DOE (born DEE), should be the first-dying, I bequeath my estate as follows: ......................." "If I, JOHN DOE, should be the first-dying, we hereby mass our estates into one consolidated whole, and we bequeath our massed estate as follows: ............................" 5.4 General If provision is made in a joint will for "massing" of the estates in the case of simultaneous death, it is of course not "massing" because there is no survivor to whom, for example, a usufruct can be allotted. It is simply a combination of assets which are divided as prescribed. For the sake of clarity, we want to point out the difference between a joint will and a massed will. The former is simply the will of two (or more) persons and it can be the will of the first-dying only or of the survivor on his death. If it applies to the survivor, he is entitled to revoke it at any time before his death. On the other hand, the "massed" will becomes effective on the death of the first-dying, and if the survivor accepts the benefits bequeathed to him, he can not, (after adiation) in a later will, dispose of his part of the massed assets. If the testators wish to mass the individual estates or part of them, this must preferably be explicitly stated in the will, which may otherwise be wrongly interpreted. 5.5 The Santrust computor programme What are the benefits of Santrust for the intermediary? The Santrust PC will package enables the intermediary to draw up uncomplicated standard wills. This has the following advantages for you as intermediary: (a) You can provide the client with prompt service, without any delays, from your own office. You are therefore able to provide a type of point of sale service. (b) Your image as a professional adviser is enhanced. (c) Your clauses are legally correct and correctly worded. Chances of errors and potential liability are therefore limited to the absolute minimum. (d) You will improve your expertise and therefore your knowledge in other fields. (e) You have the option of drawing up the will for your client free of charge, or of charging a free and recovering it on behalf of Sanlam Trust. (f) Wills open doors. You have full insight into the clients affairs and can identify and use various insurance opportunities. (g) Confidential matters are discussed and the client learns to trust you. (h) The client is bound to you. He does not want to discuss his personal affairs with someone else every time. (i) When the will is sent to Sanlam Trust for safe custody, it is checked for validity. 5.6 Which is best, one universal will or two separate wills? One universal will in respect of all South African and foreign assets will suffice. Where there is uncertainty, the person drawing up the will locally could test it with the foreign institution with which he or she has a cooperation agreement. Two separate wills also have their advantages. A separate will drawn up in English for foreign assets would eliminate the delay caused by having the Afrikaans will translated by a sworn translator, and the administration of the foreign estate could start immediately.

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6.

SUMMARY A valid will can be defined as a document which records the free and independent last will of the testator in respect of his estate. A will comes into force on the death of the testator/testatrix and after the Master has accepted it. To be accepted as a valid document the will must satisfy the requirements of the Wills Act and of the Common Law. A testator must not be younger than 16 years of age and of sound mind. Witnesses must not be younger than 14 years of age and qualified to testify in a court of law. Signing of wills - each individual page of the will must be signed by the testator. The witnesses need only to sign the last page. In order to obviate confusion and mistakes, it is recommended that the testator/testatrie and both witnesses sign each page of the will in full. Kinds of wills Single will - the will of one person. Joint will - the will of two or more persons embodied in one document. "Massing" will - two or more persons stipulate that at the death of the first of them their separate estates are to be massed. The survivor normally obtains some or other limited interest over some or all of the assets. (Revised 19/07/2010)

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