Drafting a will is a crucial step in protecting your legacy, yet many overlook key legal requirements, leading to disputes or invalidity. A poorly drafted will can cause confusion, unintended consequences, and costly legal battles. Understanding common pitfalls and ensuring clarity can safeguard your wishes and provide peace of mind. Below we have outlined some valuable points:
Know what your intentions are: Before drafting your will, it is important to be clear what your intentions are. Who do you want to distribute your assets to? Are there relatives who you specifically don’t want to inherit from your estate? Do you have any special needs children you want to provide for? Do you have any maintenance obligations? Are there any charities or organisations you’d like donate to?
Select your executor carefully: Select your executor with care. While appointing a close friend or family member may seem natural, it does carry risks. Relationships evolve, illness or death may intervene, and family dynamics can create conflict. An executor should be in a position to act impartially and manage your estate efficiently. Ideally, choose someone with financial and legal expertise who is independent of your inner circle, ensuring fairness and professionalism in executing your final wishes.
Appoint an alternate executor: Appoint an alternate executor to your Will in case your primary choice is unable or unwilling to serve. Without one, the Master may appoint someone to administer your estate, which may not align with your preferences. Ensuring a trusted alternate can help maintain control over the management of your affairs.
Ensure the Will is correctly signed: The Wills Act prescribes strict requirements for a valid Will, and any deviation may render it invalid. Importantly, your two witnesses must be competent and must sign in full at the bottom of each page. While dating your Will is not legally required, it is highly recommended to establish which version is most recent if multiple Wills exist at the time of your death.
Choose your witnesses carefully: When selecting witnesses for your Will, ensure they are not beneficiaries, as this could disqualify them from inheriting. To prevent legal complications, your executor, guardians, and trustees should also not act as witnesses. Choosing impartial witnesses helps safeguard the validity of your Will and ensures your wishes are carried out without dispute.
Revoke your previous Wills: Include a clause in your Will that explicitly revokes all previous Wills. Without this, multiple Wills may be read together, leading to confusion. Keep in mind that simply destroying an old Will is insufficient, as doubts may arise about your intent or claims of third-party interference. A clear revocation clause ensures your latest wishes are properly recognised and enforced.
Nominate your beneficiaries clearly: When naming beneficiaries in your Will, provide their full name, surname, identification number, and relationship to you to avoid ambiguity. Vague terms like ‘my family’ or ‘my children’ can cause legal disputes and delays. If any of your beneficiaries reside overseas, be sure to include their contact details to ensure they can be easily located during the estate administration process.
Do your liquidity calculations: When drafting your Will, be sure to conduct liquidity calculations to ensure your estate can cover its costs. Your executor will be required to settle capital gains tax, income tax, estate duty, transfer fees, maintenance claims, and other liabilities, along with executor’s fees. Insufficient liquidity may force the sale of assets, potentially causing financial hardship for your heirs.
Be careful of distributing assets equally among heirs: Think carefully before distributing your assets equally amongst multiple heirs as this can cause practical problems. For instance, leaving the family home to your spouse and three children in equal, undivided shares can give rise to uncertainty over who has the right to live in the house, whether it can be sold, or whether rental is payable.
Deal with the residue of your estate: Include a clause in your Will addressing the residue of your estate, often called a ‘leftovers’ clause. While you may have allocated specific assets to beneficiaries, this clause ensures that any remaining assets are distributed according to your wishes. Without it, the residue may be distributed under intestacy laws, potentially leading to unintended outcomes. A well-drafted clause can provide clarity and prevent legal complications.
Beware of handwritten Wills: Avoid allowing a beneficiary to write or type your Will, as this may disqualify them from inheriting. Elderly individuals often unknowingly jeopardise their wishes by asking a loved one to write out their Will. To prevent disputes and ensure validity, the person preparing your Will should have no financial interest in your estate.
Avoid using overly complicated structures: While estate planning can be complex, avoid unnecessary legal jargon or overly intricate structures. Ensure your Will is drafted clearly and by a qualified professional. If establishing local or foreign trusts and companies, understand the costs involved, especially in maintaining them in foreign jurisdictions and currencies, to prevent unforeseen financial burdens on your estate.
Don’t create a burden for your executor: Draft your Will to ensure a smooth, undisputed estate administration that benefits your heirs. Avoid unreasonable conditions that burden the executor and cause delays. Attempts to ‘rule from the grave,’ such as granting your spouse usufruct of a property only if they remain single, are impractical and difficult to enforce. A well-structured Will simplifies the process and prevents unnecessary complications.
Remember your duty of support: While you have freedom of testation, this is limited by your obligation to provide for your surviving spouse and minor children. If your Will does not make adequate provision for them, they have the legal right to claim maintenance from your estate, ensuring their financial needs are met after your passing.
Deal with your foreign assets appropriately: Seek professional advice on managing your foreign assets to ensure they are properly addressed. Your South African Will typically covers offshore movable assets like bank accounts and investments. However, if you own immovable property or business interests abroad, you may need a separate foreign Will to ensure proper administration and avoid legal complications.
Avoid incomplete amendments: If you make amendments to your Will, ensure that you meet the strict criteria bearing in mind that any amendment must be made in the presence of two or more competent witnesses who sign in your presence.
Make provision for simultaneous death: If you are married, include a simultaneous death clause to address the possibility of you and your spouse passing away together, such as in an accident. Also, nominate a guardian for your minor children in your Will. Without one, the Master may need to appoint a guardian for your children, which may not align with your wishes.
Have an amazing day.
Sue
