The last thing which will be on the minds of a couple ready to be married is that inevitable and daunting subject of death. Hopefully, a young couple will spend many, many happy years sharing glorious memories upon which they shall look back with pleasure. However, in an uncertain time, in a country where crime is rife and one is never sure of what the future may hold, the best advice would be to provide a certain amount of security for your spouse by drafting a Will. When you get married, your legal status changes and there are certain responsibilities which are best dealt with early on.

Not only will you be satisfied that your spouse or certain members of your family will be provided for upon death, but the implications of dying `intostato` will be avoided. It is important to bear in mind that at every point in your life where your "Status" changes, so too must your Will be altered or updated. For example, when you have children, or even if you divorce (hopefully not).
The best time to draw the Will is after the marriage date, and a mutual Will or two single Wills may be drafted. The issues that need to be examined are the following:

1. AN EXECUTOR MUST BE APPOINTED
The Executor is the person responsible for seeing to the Administrative task of winding up your estate. The Executor is entitled to 3.5% of the gross value of your estate. In most cases, if a lay person is appointed as Executor, the assistance of an Attorney is sought as the procedure may in some cases be complicated. An Executor should be trustworthy and diligent, and more than one Executor may be appointed. One should be aware that certain institutions offer the service of drafting Wills for no charge. It is however insisted upon that the institution be appointed as Executor.

2. LEGACIES
If you want to leave specific items to specific people, you can provide for this in the Will. A legacy is the term for a specific item and the Testator has the option to leave specific sums of money or articles to relatives, friends or a charity.

3. HEIRS
After providing for legacies, the Testator leaves the residue (rest) of his estate to heirs. These heirs should be clearly described in the Will. Every possibility should also be examined. What if husband and wife die simultaneously? In addition, if there should be children born of the marriage, who would be the guardian of the children should simultaneous death occur? These are important questions which should be thought out and mutually agreed upon.

Granted, the topic is rather a morbid one, however taking a responsible attitude towards certain eventualities will lead to peace of mind. Where children are concerned, it is an option to create a testamentary trust within the Will which basically says that should an heir be under the age of 21, then a trustee is appointed to administer the funds in a way that he or she deems fit, and until the heir reaches the age of 21, the trustee would have control of the funds. The Testator and Testatrix may decide that the trust must remain in place until the beneficiaries reach the age of 25 years. This is a personal decision and would depend on individual facts.

A very important point to raise is the one of death and the marital regime you have chosen i.e. if your spouse does not leave everything to you, what is your legal position?

Let`s take an example to explain and look at the outcome of each marital system.

In community of property, Antenuptial Contract, Antenuptial Contract with the accrual.

"Joe and Ann get married and the marriage is not a happy one and unfortunately upon Joe`s death, he leaves everything to the local S.P.C.A."

1. IN COMMUNITY OF PROPERTY
The Executor will examine the value of the Joint Estate as at the date of death and Ann is entitled to half share of the value. Even though perhaps Ann never contributed equally, the Executor will pay to Ann her 1/2 share, and will then distribute the balance to the S.P.C.A.

2. ANTENUPTIAL CONTRACT
The picture changes to a large extent as Ann has no right to claim any of Joe`s property and would only be entitled to her initial contribution, if one was made.

3. ANTENUPTIAL CONTRACT WITH THE ACCRUAL SYSTEM
On Joe`s death, Ann does acquire a certain right to his property. The "accrual" is the extent to which the husband and wife have each become richer at the end of the marriage, compared with their respective financial positions on their wedding day. The spouse with the smaller accrual has a claim against the one with the greater accrual for half the difference between the two accruals. When the accrual is calculated, the value of the estate as at date of marriage will be adjusted by the weighted average of the Consumer Price Index so as to be valued as at date of death. (Certain property which was excluded at the drawing up of the ANC can not be considered when calculating the accrual).

Upon consulting with your attorney on the drafting of your Antenuptial Contract, the options for your Will should be canvassed. The Will may be drafted simultaneously with the Antenuptial Contract and then signed after the marriage.

Article source: LifeWorld