by | Sep 1, 2023

If you die without a will, you leave behind chaos, uncertainty, and potential drama.

Most people think death only comes when you are much older. But more often than we care to acknowledge, it comes like a thief in the night and not when you are ready.

If you die without a will, you leave behind chaos, uncertainty, and potential drama.

If you have any assets such as a house, furniture, car, savings or investments, the responsible thing to do is to ensure you have a will in place. If you’re a parent, however, it should be a non-negotiable!

As a parent, we don’t want to think about the prospect of leaving our children behind, but a sobering statistic from 2020 revealed there are nearly three million orphans in South Africa — so it’s best to be prepared.

Guardians for your children

If you and your spouse pass away without a will, you leave no direction for a preferred guardian for your minor children, so the state will appoint guardians of its choice.

Another risk of not having a will is that after winding up your estate, what is left of your assets will go to the state’s Guardian’s Fund. Your children’s state-appointed guardians will have to claim against the fund to cover your kids’ expenses. This is not ideal as claims against the Guardian’s Fund can be laborious, plus it has been plagued by fraudulent cases over the last few years. Having a will would allow you to provide for a testamentary trust to take care of your children’s inheritance as you intended.

If you have children, passing away without a last will and testament should not be an option for you, and you should think clearly about who you’d want to care for your children in your absence. The High Court isn’t legally bound by your will to appoint your preferred guardians, but as you will see in the following example, your nomination has a great influence on the final decision of the courts.

The High Court and guardians

In a recent case in the Cape High Court, the guardianship of two young, orphaned brothers was finally awarded to their parent’s preferred guardians after the courts had initially appointed the maternal uncle and aunt as their guardians — which was not the wish of their parents.

The boys’ father and mother had passed away in 2018 and 2022 respectively.

In the mother’s will, she had nominated close friends to be the boys’ guardians.

The social worker assigned to oversee the boys’ wellbeing had no sight of the will and recommended to the Children’s Court that the boys should be temporarily placed with safety parents, namely their maternal uncle and aunt, much to the distress of the family friends, who fully expected to care for them.

The maternal uncle and aunt were not in a strong financial position to care for the children, and after one of the boys was injured playing rugby and had subsequent medical aid issues, the parents’ friends approached the High Court asking for a ruling appointing them as the legal guardians and citing the mother’s wishes in her will.

The court ruled in their favour and the boys were finally united with their close family friends, fulfilling their mother’s last wishes.

Wills Month – no time like the present

The second week of September is National Wills Week, but Capital Legacy promotes will drafting every week and labels September as Wills Month. So, if you don’t have a will in place, don’t wait for death to sneak up on you unprepared; there’s no better time than now to get your will in order.

Save your loved ones from the drama and heartache of passing away without a will. Contact your Financial Advisor to draft your last will and testament.