Not many Namibians, particularly the previously disadvantaged, understand the purpose of a last Will and testament as many are still trapped in the old adage that “why have a Will if you are poor”, not understanding that the little in their possession is equally worth documenting. In its absence, many families find themselves with conflicts as to who will inherit items left behind by their loved ones.
New Era Weekend spoke to some financial experts and ordinary people on the importance of having a Will.
“I never thought of having a Will because I don’t have a lot of wealth that I accumulated in my life. I know it is important to have one in life to avoid conflicts between families as to who will take over my cattle and house once I am no more,” said 40 year-old Shikongo Shimwefeleni, who has seven kids but is not married.
According to 34-year-old, Martha Shindume, who is a government employee, a Will is important but she feels she too has not accumulated wealth worth documenting. She said she only owns a car and has one child. “I didn’t think it is important because I have no businesses or a lot of money. The only money or wealth I feel I own is the lump sum money I will leave behind once I die. However, I have lifecover policies and I have indicated in those policies who should get my money once I die,’ she explained.
Meanwhile, Manager of Bank Windhoek’s Trust and Estates department, Barend van Wyk, says a living Will is basically a person’s wish not to be kept alive artificially and such a Will should be given to his or her family or friends and medical doctor. “We do not have any prerequisites regarding value of assets or types of assets to draft Wills for clients, except that the person must be at least 16 years of age. Any asset can be included in a Will. We all accumulate assets during our lifetime and these assets may have sentimental value to our families and to oneself. When you draw up a Will, your loved ones will be looked after when you are no longer there and the items of sentimental value and other assets will be properly protected according to your wishes,” he explained.
Without a Will, he said the, wellbeing of the deceased’s loved ones may be adversely affected, as no provisions or planning would have been made to take care of the future wellbeing of such loved ones. “A Will is one of the best ways of ensuring that your loved ones will be able to cope financially at your death. Your Will specifies your final wishes, your heirs and how you wish your assets to be dealt with or distributed in the unfortunate event of your death.
According to him, a Will is a legal document and therefore it should be drafted by an Executor who has both the adequate expertise and knowledge to apply one’s wishes lawfully.
Once drafted and signed a Will is kept at the bank for safe keeping and the client is provided with a copy. “A client can put his instructions regarding funeral, where to be buried or cremation in Will,” he added. Once a Will has been accepted as valid by the Master of the High Court, only a Court of Law can set aside a Will. Any interested party can, on good grounds, apply to the Court to have a Will declared invalid, he said.
Lukas Kotzé, from First National Bank (FNB) Namibia Trust Services, said the reference to a Living Will might be incorrect, as a Living Will is a document expressing the wishes of a client when due to an accident cannot speak for himself as far as keeping him connected to machines when suffering from brain damage. He said the correct terminology is actually Last Will and Testament.
According to him, FNB does detailed estate planning and then drafts a Will for the client.
“Our service is not restricted to FNB Clients, but anyone can approach us should they need the service. Legally you must be sound of mind and over the age of 16. If you are young and just started your career, it is a good idea to come into the habit of drafting and regularly reviewing your Will,” Kotzé said.
He explained that one does not need to have money in their bank account, adding that if a person is on pension and owns nothing and have a very slight chance of owning something in future, that such a person does not really need a Will, but there is nothing prohibiting anyone from having one.
“If you are young and have nothing and are starting to build your own asset base, you might forget to take up a Will. My advice is rather to get your Will in place. By that you ensure that whatever is in your possession at the time of your demise will go to those you want to give it to,” he stressed.
Further, he said, If one does not have a Will, the Law (Intestate Succession Act) comes into play, as it prescribes where ones assets must go after their death and that might not be those one actually wanted to benefit, or it might require that assets must be sold, for instance a farm or family home.
He also said a Will should contain clauses to nominate an Executor. “You must be able to trust the company or person as they step right into the shoes of the deceased as far as managing assets is concerned. The Will should cater for a guardian for minor children as well as trusts for them so that they can be maintained after the death of their parents. The trust could also be used for those who cannot work with money or to safeguard assets or funds for future generations. Most importantly a Will should make provision for your beloveds who must inherit,” he explained.
He however said all assets will fall into the deceased estate except pension monies and annuities and life cover policy, which have a nominated beneficiary.
FNB Trust Services has a custody service whereby original Wills are kept in a centralised vault. But he warned, “Please do not put your Will in a safe custody box at the bank as it might be difficult to get it out. In certain cases the Executor can open the box, but he needs the Will to be appointed as Executor. If you prefer to keep it yourself in a safe place in your home that would be in order, but we do not recommend that,” he pointed out. He concluded that nobody is entitled to inherit from anyone as everyone has a constitutional right to leave their assets to whom they want to.