Fiduciary Services

Can an email instruction constitute a will?

Staying on top of your ‘admin’ can be tough, especially when life gets busy. We sometimes slip up and fall behind on getting important to-do’s sorted, whether it is a driver’s license that is nearly due for renewal or the tax season that is looming. One item that should never be left for tomorrow is drawing up your last will and testament.

The death of a loved one is a devastating experience, which is made so much more stressful if the loved one did not have a valid will in place.

As soon as you own any asset, even a bank savings account, you should consider drafting a will. A will allows you the last say on who should inherit your assets after you pass away. If you do not have a will, everything you owned could be distributed to family and relatives in accordance with the Intestate Succession Act, and this may not be to your liking.

So exactly what does a will need to include? Given the massive move to digitisation across most industries, from a legal perspective, can an emailed instruction suffice as a will?

We suggest the following basic pointers:

Email, hard-copy document or WhatsApp voice note? Your will must be printed out or handwritten and signed by you, together with two witnesses on the day.
E-signatures (or digital signatures) are a modern development and generally accepted for normal contracts, but are not accepted when it comes to wills. You could, however, approach the High Court to get an order condoning non-compliance if you can prove the intention of the deceased was for the will to be valid and that he or she had drafted or created the document. But an electronic will is generally technically invalid. Going to court could cost anything from R20 000 to R50 000 in legal fees and the application may be opposed by potential intestate heirs who are excluded from the will. However, over the years our courts have shown a willingness to be flexible where justice is served.
You’re not required to include the date on a will but it is highly recommended. By law, you are required to deliver all wills a person has ever drafted to the Master of the High Court when that person dies. So if there are no dates, how do you know which is the most recent one?
Ultimately, a court needs to be satisfied that a document drafted by a deceased person was intended to be his or her will. Regardless of the format of the will, the court may order that the document be accepted for the purposes of the administration of the deceased’s estate. Be prepared though. This may be a long and possibly expensive process. Rather make sure you comply fully with the Wills Act.
Even if there are no family politics about who will inherit your assets, everything you leave behind, requires some type of legal process for transfer to new owners. So your family members can’t simply ‘move in’ and take over where you left off. The legal process can be very lengthy if you did not plan properly for this it through your will or nominate a professional executor.

FREQUENTLY ASKED QUESTIONS

Some of your questions answered

Why do I need a will?

If a person dies without a will, it could lead to severe administrative, tax and legal problems and possibly also lead to financial losses.

In your will, you determine how your assets should be divided, and nominate an executor and trustee to take care of the division of the estate’s assets and to handle the administration of any trust assets.

You have the right to name heirs as you wish in your will. If you don’t, your assets will be divided according to the Intestate Succession Act, No 81 of 1987, after your death. This could mean that persons you would have preferred not inherit from you, could inherit.

Your will therefore determines the future of everything that you’ve built up through the years – and your heirs can be directly disadvantaged if you don’t plan correctly. Estate duty, income tax, VAT and capital gains tax (CGT) can take a big chunk out of your estate if your planning is wrong.

What if my will is complex?

If you suspect that your will might be more complicated (for instance because there are children from a previous marriage, complex business arrangements and specific wishes) contact us.

What is an executor?

The executor of your estate must administer your estate in terms of the Administration of Estates Act 66 of 1965, and any other relevant Acts, and execute your estate in accordance with the stipulations of your will (or Intestate Succession Act, when applicable) under supervision of the Master of the High Court. An executor ensures that all debt enforceable against your estate, as well as the necessary tax and administration costs, are paid, and that what remains of your estate is distributed according to the terms of your will.

The executor is the company, firm or person that you appointed in your will. If you choose to draft an online will, Sanlam will automatically be appointed as your executor.

How do I nominate an executor?

The appointment of an executor is a big responsibility. You may appoint your spouse, but this is in most cases not a good idea, since your spouse could be emotionally shattered and not ready to take important financial decisions.

Without the necessary knowledge, your spouse will also not know where to get the best advice or service. Your spouse may be exposed to someone serving his own interests, in which case the estate’s cheque book might end up in the wrong hands.

Approaching a reputable company or section of a company specialising in wills, estates and trusts is a much safer idea:

You will enjoy the benefits of specialised experience and knowledge
Your estate will be handled deftly and professionally and you are ensured of objective advice
You enjoy complete security through internal control
Sophisticated computer systems ensure top quality service

As a leading trust company in South Africa, Sanlam Trust offers expert management of deceased solvent estates and living and testamentary trusts. If you choose to draft an online will, Sanlam Trust will automatically be appointed as your executor.

How do I get my signed will back to Sanlam Trust?

You can send a copy of your signed will to stwills@sanlamtrust.co.za and make use of the complimentary will collection services to ensure your original will is in safekeeping. Alternatively you can also visit your nearest branch.

Are there any costs involved?

There are no costs involved.
We will draft your will for free and keep it in safe storage, if Sanlam Trust is the executor or co-executor.
We will also draft a free living will on request. A living will allows you to detail your desires regarding medical treatment when you are terminally ill or permanently unconscious and no longer able to express informed consent, making things easier for your family.

What if I need a Shariah will?

The content of a Shariah will is fixed and complies with Muslim or Islamic laws. If you would like to compile a Shariah will please contact us.

What if I have questions or want to make changes?

If you or your beneficiaries have any queries or would like to make changes to the will, please contact us.

What should I do after completing the online will?

A draft will is generated that you can download immediately. A consultant will call you to finalise your will, make sure it reflects your wishes, that you sign it correctly, and return it back to Sanlam Trust for safekeeping. You can send a copy of your signed will to stwills@sanlamtrust.co.za and make use of our complimentary will collection services to ensure your original will is in safekeeping. Alterrnatively you can also visit your nearest branch.
If you’ve nominated another party as executor, please download and print the will. You will need to engage a will consultant to finalise your will. We strongly advise that you ensure that your will is safely stored and that the party you have nominated as executor is informed of this.