Use lockdown time wisely – make a will

Why right now is a good time to make a will

The current crisis is affecting different people in different ways. Some are having a great time, enjoying the break from work, cooking nice meals, drinking wine, and watching a lot of Netflix. Others are getting on with work, a bit disorientated by the lack of social contact, but easily transitioning to remote working. Some are suffering, either due to cramped living conditions they can’t escape, or from anxiety and depression brought on by isolation and uncertainty. We are all affected by the lockdown in different ways, and we all have different ways of coping. However, one thing is true for all of us: the thought of death is never far from the surface. 

As a country, our mortality rate from COVID-19 is very low. Our infection rate is low. Our president acted swiftly to contain the spread, and so far it seems to be working. We have a young population (the median age is 27), which means we are less likely to be as badly affected as somewhere like Italy, which has the oldest average population in Europe. But many South Africans live with underlying health conditions. Health is, to a large extent, socially determined, and our high rates of poverty and inequality mean that a large sector of our population suffers from poor health, particularly respiratory health. So while most of us who are unlucky enough to catch COVID-19 will experience little more than a bad chest cold, some may not survive. And that’s why death is something we are all thinking about, even if we’re not worried about our own.

Don’t take fright – take action

No one likes to think about their own demise, and as a result many put off making a will. Right now, we’re taking all the right measures to look after ourselves and our neighbours and communities by staying indoors. It’s not a time to be fearful, but it is a time to be mindful. We are aware of our health and our humanity in a way we often manage to avoid, as normal life keeps us busy and distracted. The enforced time at home is an ideal opportunity to think about the things we usually put off, and that includes drafting a will.

Hopefully you will look back on the year 2020 from a ripe old age and tell your grandchildren about ‘lockdown’. No matter when the end comes, you want to be sure your property goes to the beneficiaries of your choosing. If you die without a valid will you have no say in what happens to your estate. Your ‘estate’ is the legal term for your assets, which include your house or flat (if you own it), your savings and investments, and your personal possessions. If you die without a will you are said to be ‘intestate’. The ‘Rules of Intestacy’ will divide your estate in a way set out by law and it may not be distributed the way you wish it to be or to the people you most want to benefit. It also may not be carried out in the most tax-efficient way. What this means is that if you live with someone, even if you are married or have step-children, they may not automatically inherit your estate.

If you have children…

If you are a parent of a minor child or children it is particularly important to have a valid will. In addition to ensuring that your assets are distributed according to your wishes, your will sets out your intentions for the care of your children should you die before they reach 18. If you are married you might presume that your surviving spouse will retain custody, but you must make provision for your children’s welfare should something happen to the pair of you. It is, thankfully, extremely rare, but tragic accidents do sometimes happen. The nomination in your will of a legal guardian will at least spare your children the trauma of being made wards of court while a guardian is appointed on top of the tragedy of losing their parents. 

If you are a single parent it is even more critical to name a guardian, particularly if you have reason to believe the non-custodial parent would not be a suitable full-time caregiver. These matters are never pleasant to contemplate or to discuss but it is important to sit down with family members or close friends, as appropriate, and agree how your children will be looked after in the event of your untimely death. Second to the death of a child, dying while their children are small is most parents’ worst fear, so having legally documented plans in place can provide the peace of mind you need to forget about it and get on with living.

How do you make a will and why should you use a lawyer?

There are many do-it-yourself templates online that you can use to draft a will free of charge. You could just write your wishes on paper and have it witnessed. However, trying to make your own will without legal assistance is not a good idea. You may make mistakes or there may be a lack of clarity that would render your will invalid. If you have a number of beneficiaries and your finances are complicated, it is even more important for a professionally trained attorney to draw up your will. This makes it easier for those you leave behind and guarantees your intentions will be accurately recorded.

Before seeing a lawyer, make an inventory of what you have in your estate. Be specific. Don’t just say ‘furniture’ if you want your grandmother’s antique writing desk to go to a specific family member. Then you can decide how your estate is to be shared between beneficiaries. You also need to think about:

• What happens if any of your beneficiaries die before you do. For example you may wish to include your parents in your will in the event that you die first; but the likelihood is that they will pre-decease you. So be clear about your instructions and also remember to update your will after any major life event
• Who will look after your children (if you have any)
• Who should carry out the wishes contained in your will (your executor)
• Any other wishes you may have, for example whether you want to be buried or cremated and where – or how. It is becoming more common for people to express a preference for a ‘green’ burial

When should you update your will?

Once you have written your will you should review it regularly to make sure it reflects your wishes, especially if you undergo a major life event, such as:

• You get married or enter into a life partnership with someone
• You get divorced or end a life partnership
• You have children; or other relatives you wish to benefit, for example nieces, nephews or grandchildren, come into the family
• Someone named in your will dies
• You buy a new property or obtain expensive assets (such as buying a new car)

How do you find a good family lawyer to help you make your will?

Not all lawyers specialise in estate planning and the drafting of wills. Even if you have a family lawyer or an attorney who has represented you for legal matters in the past, it is worth checking if they offer a will-writing service and what their fee is. 

Simon Dippenaar and Associates are specialists in family law and can help you draw up your will to ensure your estate is distributed and your children are cared for exactly the way you would like after your death. If you want to discuss your will or if you have any questions about any aspect of COVID-19, from co-parenting rights to eviction, contact Simon now on 086 099 5146 or email him on info@sdlaw.co.za for a confidential discussion.

This is an updated version of a post that first appeared 17 May, 2019

Further reading:

• Living will – what to do when the “end of the line” draws near
• Three surprising ways a divorce can affect your will
• Not married – when the inevitable happens

Curb the Corona Crisis Video Series:

Simon Dippenaar

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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