For many South Africans, drafting a will is an act of responsibility – ensuring that their loved ones are protected and that their estate is distributed according to their wishes. However, good intentions alone do not make for an effective estate plan. It’s also imperative that your will is actionable – that is, capable of being carried out in practice – failing which your heirs could be left frustrated, your executor powerless, or your family members embroiled in disputes.
For a will to be actionable, it must be legally valid, practically executable and logically coherent for estate administration purposes. Unfortunately, many testators include provisions that are impossible, impractical, ambiguous or legally flawed. Whether driven by emotion, a misunderstanding of the law, or wishful thinking, the outcome is often the same: the executor may be forced to seek clarity or legal guidance on the paragraph, or the estate may be delayed and contested.
Below, we unpack a number of common mistakes that render paragraphs impossible or impractical to implement and offer insight into how to avoid them.
Bequeathing assets that no longer exist
A common mistake made by testators, especially where the will hasn’t been reviewed in some time, is leaving a specific asset to a beneficiary that the testator no longer owns at the time of death. For example, ‘I bequeath my Toyota Hilux to my nephew, Adam’, even though the vehicle was sold three years prior.
Why it’s a problem: In terms of the doctrine of ademption, specific bequests lapse when the asset no longer exists. This can happen when the testator sells, gives away or otherwise disposes of an item before they die. Unless the will provides for substitution or a cash equivalent, the beneficiary may receive nothing.
Solution: Review and update your will whenever your asset base changes, especially after selling or acquiring high-value assets.
Leaving the same asset to multiple people
In some wills, the same item or property is accidentally bequeathed to more than one person. For instance, ‘I leave my family farm to my daughter, Sarah’, and later: ‘I leave my farm to my three sons in equal shares’.
Why it’s a problem: Contradictions such as this create legal uncertainty. Naturally, the executor cannot carry out both wishes, which means that the estate may be delayed while the ambiguity is resolved through the legal process.
Solution: Carefully review your will to ensure each asset is only allocated once and that your wishes are not contradictory.
Bequests of sentimental items without clear identification
Testators sometimes write vague clauses such as ‘I leave my favourite necklace to my granddaughter’ without specifying which necklace or where it is located.
Why it’s a problem: Vague descriptions can result in confusion, disagreement and even lost bequests because executors cannot act on such unclear instructions.
Solution: Be as specific as possible. Include identifying details—such as ‘the 18-carat gold necklace with the sapphire pendant’. Further, while the testatrix may only have one granddaughter at the time of drafting the will, keep in mind that she may have additional granddaughters later on, which may obfuscate the will.
Conditional bequests that are too vague or illegal
An example of this is where a testator includes a suspensive condition in the will that is against public policy, such as ‘My daughter will receive her inheritance only if she divorces her husband’, which is against the sanctity of marriage.
Why it’s a problem: Conditions that are too vague, immoral or against public policy may be considered invalid. Executors are not in a position to enforce subjective or intrusive stipulations.
Solution: Avoid placing conditional terms that are unrealistic or contrary to public morals, and ensure that all bequests are objective and lawful.
Leaving assets to people who are legally unable to inherit
Sometimes testators bequeath assets to individuals who, by law, cannot inherit—for example, a witness to the will or someone involved in its drafting.
Why it’s a problem: Under South African law, a person who signs as a witness or writes a will on behalf of the testator may be disqualified from inheriting under that will if the high court finds that the testator was unduly influenced by that person or that, on a balance of probabilities, the will does not reflect the testator’s true intentions.
Solution: Ensure that all witnesses are disinterested parties and avoid involving any beneficiaries in the drafting or signing process.
Creating testamentary trusts without sufficient instructions
A will may state: ‘I leave my estate in trust for my minor children’, without specifying the terms of the trust, such as who the trustees are, how the funds should be managed, and at what age the children should receive the capital.
Why it’s a problem: Without clear instructions, the testamentary trust may not be properly established and those assets intended for the minor children by be defaulted to the Guardian’s Fund.
Solution: Ensure that your will is correctly drafted to give effect to a testamentary trust in the event of your passing.
Trying to dictate the use of assets beyond legal limits
Some wills attempt to control property indefinitely, such as: ‘My house may never be sold and must always remain in the family’.
Why it’s a problem: South Africa’s laws of succession do not allow for perpetual ownership and attempt to limit ownership of assets indefinitely into the future.
Solution: Once a beneficiary receives ownership of an asset, they are entitled to deal with the property as they see fit. While our law does allow limited successive ownership through a fideicommissum, note that a fideicommissum cannot be extended indefinitely and must end within a reasonable time, typically no more than two or three generations.
Overlooking liquidity requirements
A testator might leave multiple bequests without considering whether the estate has sufficient cash to cover administration costs, debts, and/or taxes.
Why it’s a problem: If an estate is asset-rich but cash-poor, the executor may be forced to sell assets to generate liquidity in the estate – even those assets that may have been specifically bequeathed.
Solution: Ensure that your financial advisor prepares updated estate liquidity calculations and puts mechanisms in place to address any shortfalls that may exist.
Attempting to distribute assets that fall outside the estate
Wills sometimes attempt to bequeath assets that do not form part of the estate—such as jointly owned property, assets in inter vivos trusts, or capital housed in retirement funds.
Why it’s a problem: Assets such as retirement fund benefits are governed by the Pension Funds Act. In terms of Section 37C of the Act, the trustees of the fund must identify those who were financially dependent on the testator at the time of death and apportion the funds accordingly.
Solution: Understand which assets fall inside and outside your estate and align your estate plan accordingly.
Most importantly, keep in mind that your will is a legal document that has binding consequences. In many cases, what seems like a heartfelt or reasonable clause can unravel in execution due to poor wording or lack of understanding of the law – and the best safeguard against these issues is professional advice.
Have a wonderful day.
Sue
