What is a living will?

A will is designed to speak for you when you are no longer able to. Essentially, a will is a personal expression of how you would like your affairs to be dealt with when you pass away. It is vital that everybody has both a will and a living will. 

A living will is a specific type of will which can take effect not just on death but on incapacitation. Most wills, if properly drafted, will contain a portion dealing with this. A living will is also known as an advance health care directive, advance directive, or advance decision.

A living will is a set of written instructions that a person gives to specify what actions should be taken about medical treatment if they are no longer able to make decisions due to illness or incapacity. The instruction appoints someone to make these decisions on their behalf.

The provisions can be extensive or simple. The key is to be clear and unambiguous.

Carefully consider the effect these provisions (both financially and personally) can have on those closest to you. I would certainly recommend that you advise your family of the provisions in your will.

Anyone older than 16 years is competent to write a will in order to determine how their estate should devolve upon their death, unless they are mentally incapable of appreciating the consequence of their actions at the time of making the will.

There are a number of legal requirements for a valid will:

• All wills must be in writing. They can be written by hand, typed or printed.

• The signature of the testator/testatrix must appear at the end of the will.

• This signature must be made in the presence of two or more competent witnesses. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other.

• If the will consists of more than one page, each page must be signed anywhere on the page by the testator/testatrix.

I would recommend that all wills, including a living will should be drafted by a professional, although it is not a requirement.

How does my divorce affect my will?

Wills should be revised upon divorce. The provisions of your will do not necessary fall away after divorce. You have three months to amend your will after your divorce. Any terms of the will pertaining to the divorced spouse are suspended for three months. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

What happens if I do not leave a will?

If you die without leaving a valid will, your estate will devolve in terms of the rules of intestate succession. For more information on the Intestate Succession Act, please consult the Act or your legal representative or go to www.justice.gov.za/legislation/acts/1987-81.pdf

What is a codicil?

A codicil is an annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

Written by Charles Bailie

Leave a Reply

Your email address will not be published. Required fields are marked *