Most South Africans still lack a valid will as Wills Week begins

National Wills Week got under way on 14 September, the centrepiece of the broader Wills Month campaign, with figures from the Master of the High Court showing that fewer than 50% of South Africans have a will in place.

The initiative, run by the Law Society of South Africa and supported by the Department of Justice and Constitutional Development, saw its most recent edition close on 18 September last year.

The SABC reported at the time that behavioural experts said most South Africans avoid drafting a will because they are reluctant to confront their own mortality, and that many people talk about getting a will done without ever following through.

Cost is another significant barrier: research cited by the broadcaster found that 58% of South Africans point to a lack of access to free or affordable will-drafting services. The persistent myth that wills are only necessary for the wealthy was also cited as a deterrent.

Chris Weyer, head of Wills at Momentum Trust, responded to several questions.

Why is it important to have a will, even for people without significant wealth?

Having a will is an extremely important consideration, and the perception that a will is only for the wealthy is wrong. Even if you don't have a lot of wealth, you should be looking at things such as guardianship of minor children – what's going to happen there. Should there not be a natural guardian, it falls to the Master of the High Court, who is the upper guardian of all minor children, to appoint one. If you don't have a will, you're not able to offer direction, and that creates a lot of strain and stress for those children. So that would be just one instance where, even without a lot of financial means, a will is extremely important.

What does a will actually entail in terms of format, even for someone without much wealth to pass on?

A will is obviously a legal document, and we also need to look at the difference between a legally valid will and what we term an executable will. A legally valid will is one that follows the prescribed format – there are two witnesses above the age of 14, the person drafting the will is above the age of 16, and it's signed in wet ink, with that person setting out their wishes in the document. The problem is that if that will isn't backed by a financial plan, those wishes may not be executable at the end of the day – which is what we mean by an executable will. So even with limited financial means, it's important to seek the assistance of a financial adviser to make sure the wishes you want to leave for your loved ones can actually be fulfilled, rather than being eaten up and eroded by costs. People often draft a will but don't take into account costs and taxes.

What are the most common misconceptions people have about wills?

People think a will is a complex thing, that it's only for the wealthy, and they're scared to face their own mortality when it comes to wills. There's also often a belief of “I don't need a will, my family will sort it out” – and while families may all love each other and get on well, when you're no longer around, it doesn't always play out that way in the real world. Real conflict starts when there's no clear direction.

One aspect we don't talk about enough is the concept of a living will. A living will isn't stored with your regular will in safe custody – it's a separate document you can request when you do your will. What it does is direct medical personnel on what to do when you're on machines in hospital and no longer able to speak for yourself – whether they should turn the machines off. Having faced that myself, it was a very difficult scenario, having to tell doctors not to resuscitate one of my parents. That document gives clear guidance, and you'd keep it somewhere safe, tell your family where it is, and probably give a copy to your financial adviser to hold for you. You can also state in that document whether you're an organ donor, so doctors know immediately what to do. That's an extremely important thing to bear in mind.

What happens to someone's estate if they pass away without a will – for example, if there's a house that hasn't been paid off?

It creates a lot of difficulty, because if you pass away without a will, your estate's assets are distributed according to a prescribed formula under the Intestate Succession Act. Your debts still have to be settled. You may have wanted that house to go to a particular person, and other money to go to somebody else, but your wishes won't necessarily be fulfilled, because there's no will to direct how they should be carried out. There's also no nominated executor, so the family has to go out and find a competent executor able to assist them in terms of the Act. It delays the process and creates a great deal of anxiety for those left behind.