Tuesday, 30 July 2013

MYTHS REGARDING WILLS AND DECEASED ESTATES


  • Due to freedom of testation you can basically say anything you like in your Will. 
  • Your last “Will and Testament” is a contract
  • It is the duty of an executor to make funeral arrangements.
  • Do signing powers and power of attorney lapse at death?
  • Does interest on investments and debt cease at death?
  • Do contracts and lawsuits lapse at death?
  • Does the executor summarily sell all estate assets?
  • Does everyone have a right to inherit?

Most of us are afraid of dying. In our society many people still consider it taboo to discuss issues surrounding their death. However, it is an important part of money management (financial literacy) to be aware of the issues of dying, wills and testaments.

Some of the most commonly beliefs are:
  • ·         If you die without a valid Will, your assets are automatically forfeited to the State.
  • ·         Everyone has a right to inherit from a parent.
  • ·         An oral promise of an inheritance is a valid promise.


These are all myths, and here are some other misunderstood points:

No. You are not allowed to speak from the grave. For example, in your Will you cannot ask the person appointed as your executor to carry out your wishes, if to do so would go against any Acts of Parliament, promulgated regulations or other rules. You may also not make stipulations which are contra bonos mores (contrary to public morals), for example by making your son's inheritance conditional upon his divorcing his wife. You may also not take away the right of a parent of guardianship of his or her biological child.

No. Strictly speaking, a contract is an agreement between two or more persons, whereas a Will is a unilateral (one-sided) declaration of your last wishes. However, the amount you agree to pay the executor in a Will may be regarded as an enforceable contract.

No. However, if he does so, it is in his personal capacity. Only funeral costs (burial or cremation) and the cost of a gravestone (or a niche in a vault, or columbarium) are claims that can be made against the estate. Other costs, for example telephone and travelling costs and the cost of funeral refreshments, cannot be claimed unless you specifically state them in your Will.

Yes. Only the executor may, once he has been appointed by the Master, withdraw funds and sign documents.  (“Signing Powers” and “Power of Attorney” means is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter.)

No. Interest receivable on your savings account and investments ceases only upon withdrawal and closure of the account by the executor. Interest payable on debt, such as mortgage bonds and hire-purchase agreements, ceases only when the debt has been redeemed.

The executor must honour all contracts entered into by the deceased prior to death, unless the contract provides for its lapsing upon death. If the deceased was involved in a civil court case, then, provided court pleadings have been finalised (the legal term is ‘closed’), the case will usually continue. A criminal case against the deceased will, however, automatically lapse.

No. His primary task is to follow the wishes in the Will. He may sell assets only as stipulated in the Will, or at the request of an heir, or where there is insufficient cash available to settle claims.

No. However, a child has a right to maintenance from both parents and, if the surviving parent cannot provide, then the child’s claim lies against the estate of a deceased parent, and enjoys preference over the claims of heirs and legatees. A surviving spouse also has a right to reasonable maintenance. And if you do die without a valid Will, the provisions of the Intestate Succession Act apply, and an executor appointed by the Master will distribute your net estate (assets less liabilities) to those heirs and in the proportions specified in the Act.


If you are older than 18, you have a responsibility to become financially literate by seeking advice from a competent advisor on issues of wills and testaments among others.

No comments: