What is a Will?

Once, a client of mine asked me about drawing up his will. He said that he’d like for the house he stays in to go to his three children. So, I asked him a bit more about it, and he said that the house didn’t belong to him, and his children stayed with his ‘babymama’. Unfortunately, he couldn’t give away his house to his children since he didn’t own the house. In any event, I enquired as to why he didn’t want to include the ‘babymama’ in his will, to which he said that “she might bring other men into the house”. 

If you’re anything like my client, you’re gonna want a will. 

But let’s rewind a bit, what is a will? 

A will isn’t a contract, because that would require more than one party to it. A will is simply a declaration in which a person sets out how and to whom their assets must be given away after their demise. When a person dies, all their assets and liabilities form part of their deceased estate. After all their liabilities are settled, the assets must be transferred to their heirs. 

If you don’t have a will, if you won’t, then someone else will. That someone is the National Government of the Republic of South Africa which has put into law the Intestate Succession Act 81 of 1987. This may be unfavourable. For instance, in terms of Section 1 (1A) of the Act, a permanent life partner is considered a spouse and qualifies to inherit. Therefore, the Government stipulates that my client’s ‘babymama’ should be entitled to inherit his house (if he owned it) whether or not she turns it into the playgirl mansion.

So how can one make a will? Section 4 of the Wills Act 7 of 1953 states that every person of the age 16 or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally ill at the time rests on the person alleging same. If there is an impairment to the testator (the person who makes a will) such as undue influence, duress, or mistake, this will also void the will. A will must be in writing and signed by the testator and at least two witnesses.

The fun part about a will is that, for once, the ordinary person is put into the position of the lawmaker in a sense. A person making a will has absolute freedom of testation, which means that their wishes will be carries out as far as legally possible. Alfred Nobel, for example, instituted the Nobel Peace Prize (and the Nobel Peace Prize Committee) in his will (Alfred Nobel became rich after inventing dynamite and in all likelihood established peace prize to make up for his contributions to the opposite of peace). 

The only limitations to freedom of testation are if something is unlawful, against public policy, vague, or impossible. Coming back to my client, this means that he can most certainly leave out his ‘babymama’ from his will whether she likes it or not. The only limitation is that if his inheritance is conditional, it can be challenged. That is, if your will stipulates that your son will only inherit on the condition that he marries someone of the same religion, this may be challenged as it conflicts with the Bill of Rights in the Constitution.

In addition to ordinary wills, notably, there are also joint wills and living wills. In a joint will, a couple will usually make a will together that their joint estate be distributed upon the death of the first dying, and the acceptance of the surviving spouse. This is usually the case where both are spouses are retired, and it makes sense for their children to inherit even if both have not passed on. In a living will, or an advance healthcare directive, a person may request that in the event of being placed on life support they do not want to be artificially sustained and be allowed to pass on. 

Therefore, while a will may be one of the simplest legal documents, its flexibility allows for endless possibilities.