Keeping your last will in a safe and secured place while ensuring that the executor and beneficiaries have access to the document is a challenge, says Dawid van der Berg, Gauteng Private Company Tax and Legal Services Leader, PwC.
“The will needs to be kept safe from any unforeseen damage or loss. In addition, updating of the will must be considered,” he adds.
The issue of keeping a last will and testament in a safe place has become more prominent in the wake of a spate of recent fires in the UK and closer to home, in Knysna. Van der Berg points to past examples in the US where relatives of those that had died tragically in hurricanes attempted to locate the deceased’s last will.
Executing a will is an important step in estate planning. A will gives the testator the opportunity to bequeath his/her assets and to indicate how they want their estate to be distributed after death. If a person dies without a will, their estate will be distributed according to the law of intestate succession. This may include beneficiaries whom you may not wish to benefit or may exclude those whom you would have preferred to benefit.
A will is an important private and confidential document. Not only is the proper execution of a will important but it should be updated regularly and carefully to provide for any change in the testator’s circumstances. Ideally, an original will should be stored in a safe and secure place – usually the testator’s home preferably in a fireproof safe. Depending on the status of family relationships, if kept at home, the document should also be protected from potential tampering or destruction. The testator should also inform the executor/s where the will is located.
There doesn’t have to be a natural disaster for a will to be destroyed. An unexpected flood or house fire may put the testator’s last will at risk.
It is usually more secure to store the document in an attorney’s or auditor’s office. However, it should also be noted that even these offices are not immune from a natural disaster or a fire taking place.
An obvious way of protecting documents is to make a number of copies and keep them in different places. However, in South Africa only an original document will be accepted by the Master’s office. Should only a copy of a will be available, the executor or a beneficiary would have to lodge an application to the High Court proving the intention of the testator, and that the copy was the last will and testament of the deceased. Proving that the copy was the true intent of the testator is a challenging and expensive exercise, Van der Berg adds.
A copy should be clearly marked as such by the testator. The law has not made provision for digital signatures and other digital technologies available. A signed piece of paper is the only legal form of a last will and testament under South African law. “Unfortunately paper doesn’t bode well in the case of a fire or flood, as well as exposure to other natural elements,” Van der Berg says.