Orphans and Vulnerable Children - CRIN

Wills - Questions and answers (see page 271)

Execution of a will

Note: Laws with regard to wills may differ from country to country, so it is best that the facilitator

does adequate research before dealing with this topic in the workshop. The following questions

and answers may need to be adapted appropriately.

What makes a will invalid (not legal)?

A will is invalidated if:

 It is made by a person of unsound mind or a person who does not understand what he or she

is doing.

 It is made under force, duress or threat.

 It is unclear regarding the distribution of property or the property mentioned in the will has

already been sold, distributed or used before the death of the testator.

 It does not mention the wife/wives or husband, minor children aged less than 21 years or any

of the dependant relatives. The dependent relatives are those who are substantially dependent

on the deceased for their survival, not those who are merely receiving assistance.

According to the law, the testator must not omit certain essential people in his/her will, including

wife/wives, husband, children and dependent relatives. The matrimonial home should not be passed on

to any other beneficiary because it is automatically taken over by the testator’s spouse if the testator is

married. Otherwise, the testator may extend the will to other persons of his/her choice.

If a will is found to be invalid, the testator’s property is divided up like that of a person who has left

no will.

What happens if there are objections to the will?

If any person is dissatisfied with the content of a will or the people applying for probate, he can lodge

a protest in court. The court may hear the grounds of objection. It can then declare that the will is

valid and authorise the property to be distributed. If the court finds that the will is invalid, the property

is distributed as if the deceased left no will. If the person complaining is supposed to be a beneficiary

of the will but was left out or did not benefit from the will, then the court may make adjustments

to the will to provide for that person.

What are the legal implications of failing to leave a will?

If a person fails to make a will or leaves an invalid will, he or she is said to have died intestate.

In order to manage the estate of a person who has died without leaving a will, one has to apply

for letters of administration from the court. A report of the death of the deceased must be submitted

to the Administrator General or other relevant court representative within 14 days after the death.

(^358) Appendix 2, Further Infomation Guide to Mobilising and Strengthening Community-Led Care for Orphans and Vulnerable Children