Different types of wills and why you may need them

If you’ve taken the all-important decision to put your affairs in order and draft a will, you may be wondering what form the document should take, who should help draft it, and what special considerations should be kept in mind when putting the document together.

Last will and testament

What is it?

A will is probably one of the most important legal documents you will ever draft and is unique in that it only comes into effect after your death. A will – provided that it is found to be valid – is a legally enforceable document that serves to dictate how your earthly possessions should be distributed after you have passed on. Importantly, there are a strict set of requirements that need to be met in order for a will to be deemed valid, so it is important to seek advice when putting your will together. While freedom of testation is a fundamental part of our law of succession, there are certain limitations which those drafting a will must be aware of to ensure that the document complies with legislation and fulfils your objectives.

Who needs one?

Anyone over the age of 16 is capable of writing a will provided that they are mentally capable of understanding the consequences of their actions at the time. As a will deals with the distribution of one’s assets in the event of death, having a will should be a priority for anyone who owns assets and would like to dictate what should happen to them after death, keeping in mind that there are certain assets that are not dealt with in terms of a will, such as retirement funds, life policies where beneficiaries have been nominated, and trust assets.

How to draft one?

If you are single, have no children, and have few assets, you may be comfortable downloading a DIY will template and following the instructions contained therein. However, if you are married, have minor children, own immovable property, have business interests, and/or have trust structures in place, it is preferable that you approach a professional to assist with the drafting of your will.

The nature of your marriage contract has a major impact on your ability to testate, as do your legal financial obligations to your spouse and minor children. Your will can either be printed or handwritten and must be clearly legible to avoid any confusion or uncertainty. Remember, if you hire someone to type or write out your will, that person must not stand to benefit in any way from your will or they may be disqualified from inheriting when you die.

As the person drafting the will, you are required to sign in full on each page and as close as possible to the last line on the last page of your will. Your two witnesses, who must be age 14 or older, must bear witness to your signature on the last page – keeping in mind that they are not required to read or understand the terms of your will. Their job is to attest that you, the testator, signed the will in their presence.

While not a legal requirement, it is always advisable that you date your will to avoid any confusion after your passing as to which constitutes the latest copy of your will. To prevent loss, theft or fire, it is advisable that you sign and witness three original copies of your will, with each copy kept in a separate, safe place.

What to consider?

Winding up a deceased estate is a specialist area so give careful thought to the appointment of an executor. While you may be tempted to nominate a family member or close friend, this is not always advisable given the legal and financial complexities involved. Instead, consider appointing a fiduciary expert or fiduciary company as executor who has experience in estate administration.

Importantly, make sure that your will includes what is referred to as a ‘revocation clause’ in which you revoke all other wills that you have previously drafted and declares this will to be your last recorded wishes. Don’t be tempted to make handwritten amendments to your will as this can lead to suspicion and speculation. If you do need to make changes or additions to your will, rather draft a codicil to your existing will or consider redrafting your will entirely.

Living will 

What is it?

Unlike your last will and testament, a living will is a document designed to be used while you are still alive to provide guidance to your family and medical doctor regarding end-of-life medical care and treatment. Through a living will, you can request that certain medical treatment aimed at prolonging your life be withheld in circumstances where there is no hope of your survival, such as if you are in an irreversible vegetative state with no hope of recovery.

Your living will can also be used to express your desire not to be resuscitated, identify the forms of medical intervention you would be comfortable with at end-of-life, and for organ and tissue donation. For many people, the thought of being kept alive artificially or where death is inevitable – possibly experiencing pain, extreme discomfort and indignity – motivates them to draft a living will, although it is important to keep in mind that such a document does not deal with euthanasia or assisted suicide.

A living will documents your desire to be allowed to die a natural death, free from having one’s life artificially extended by often painful and invasive medical treatment. Euthanasia, on the other hand, is not legal in South Africa and a person may not ask their doctor to assist in expediting their death.

Who needs one?

Anyone over the age of 18 who is concerned about being incapable of making decisions regarding their end-of-life medical care can draft a living will. Remember, a living will is totally separate from your last will and testament and serves a completely different purpose. Once drafted, your living will can be a valuable guide for your family and treating doctors who may find themselves having to make difficult decisions regarding your medical care if you are unable to speak for yourself. One of the greatest advantages of a living will is that it can provide your loved ones with peace of mind, and can help avoid arguments amongst your family members who may have differing opinions on how you should be cared for.

How to draft one?

To draft a living will, you must be over the age of medical consent (age 18) and must be of sound mind. ‘Informed consent’ forms the basis of a living will meaning that you must be able to fully appreciate the risks involved in signing such a document. By signing a living will and handing it over to your loved ones and/or doctor, you are effectively giving them permission to make life or death decisions should a time come when you lack such agency – and you need to trust them completely to honour your wishes and make the best medical decisions for you.

Remember, however, that a living will is not a legally enforceable document and your doctor has no legal obligation to honour it. Because of this, the South African Medical Association and the Health Professions Council of SA have both issued guidelines to the effect that a patient’s wishes should be honoured and respected. It is advisable to talk to your doctor about your living will so that they are aware of your wishes. If they have any conscientious objections to such a document, this will give you the opportunity to find another doctor who will honour your wishes. While it is quite easy and perfectly acceptable to write your own living will, there are plenty of templates available online, such as those provided by Law For All, Funeral Guide and Dignity South Africa.

What to consider?

The efficacy of your living will hinges on your family and/or medical doctor knowing about its existence. When tragedy strikes, you do not want your family wondering whether you have a living will, or scrambling to find it. Make sure that a number of key people in your family or inner friend circle are aware of your living will and know where to find it quickly. You may also want to consider appointing a medical proxy or spokesperson in your living will who you trust to speak on your behalf. This can help to avoid a situation where multiple family members have lines of communication with the medical team attending to you.

Digital will

What is it?

A digital will is a relatively new concept that has come about because of our enormous dependency on technology and the web. Most of us have a far-reaching digital presence with our personal profiles covering almost every aspect of our lives including banking, finance, shopping, gaming, socialising, news, hobbies and education. By drafting a digital will, you can help your loved ones shut down your digital presence after you have died in a safe and secure way in accordance with your wishes. In a nutshell, a digital will is a complete list of all your devices, online profiles, login credentials, email addresses, passwords and subscriptions, together with a set of instructions as to what should happen to them in the event of your death.

Who needs one?

Anyone who has an online presence should contemplate putting a digital will in place. Tragedy can and does happen and, in the event of your death, your loved ones may be left struggling to access your online accounts, profiles and subscriptions. Most of us use a number of tech devices ranging from smartphones, tablets, laptops, smart TVs and external hard drives, and in the event of our passing our loved ones could be left with an insurmountable task. Remember, while a digital will is not a legal document, it can be an incredibly useful document especially when it comes to ensuring the security of your online presence in the weeks following your death.

How to draft one?

To draw up your digital will, start by listing your various tech devices and recording the login credentials for each. This will ensure that your loved ones can get into your devices and begin the process of accessing your various profiles and accounts. Next, make a list of all the important accounts that you have online. In this regard, it may make sense to separate them into sub-categories such as banking, share trading, gaming, social media, shopping, chat rooms, news subscriptions, etc.

Next to each line item, record your username and password together with any other safety features or two-factor authentication details that you use to access each account. If you have a centralised password repository or password management app, be sure to provide these details as well. Next to each account, provide an instruction as to how you wish the account to be managed, wound down, closed or cancel in the event of your death.

What to consider?

To streamline the process of winding down your digital life, it may make sense to appoint a ‘digital executor’ to take control of the process after your passing. Ideally, this needs to be someone that is tech-savvy and who you trust implicitly to respect your wishes and safeguard your online interests if you are no longer around. Importantly, let your ‘digital executor’ know about your intentions and make sure they know where your digital will is located.

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