Drafting a will is an essential step in effective estate planning, but it’s equally important to understand what does not belong in this all-important document. This is because including inappropriate provisions or unnecessary instructions can lead to confusion, delays, and even costly litigation for your loved ones. Using South African succession law as a guide, here are ten key items that should never find their way into your will.
1. Funeral instructions: While your preferences for burial or cremation are important, your will is not the place for them. Typically, wills are only read after the funeral, meaning your final wishes regarding your funeral arrangements will likely be discovered too late. Instead, communicate these instructions clearly and separately to your family, executor, or funeral home ahead of time.
2. Assets held in trust: Assets already transferred into a trust do not form part of your estate and therefore cannot be bequeathed in your will. Remember, once an asset is placed in trust, it is managed by the appointed trustees in accordance with the trust deed, and the trust founder effectively relinquishes control over those assets. As such, attempting to include trust-held assets in your will may create confusion, as these assets are not legally yours to distribute.
3. Proceeds of life policies with nominated beneficiaries: Life insurance policies where beneficiaries have already been nominated should not be included in your will. In terms of our law, the proceeds of these policies pay directly to the nominated beneficiaries, thereby bypassing the entire estate. Mentioning them in your will could cause uncertainty or legal disputes, especially if the beneficiaries named in your will differ from those officially nominated on the policy.
4. Retirement fund benefits: Similarly, your pension, provident, preservation, or retirement annuity fund benefits should never be included in your will. The trustees of these retirement funds have the legal responsibility to identify and allocate benefits to dependants and nominees according to Section 37C of the Pension Funds Act. Including these in your will could confuse matters and is likely to have no legal bearing.
5. Jointly held assets: If you are married in community of property, be cautious of bequeathing assets that form part of the joint estate. Remember, only 50% of the joint estate is yours to bequeath and attempting to bequeath what is not yours can lead to disputes and potential litigation. In the event of the death of the first-dying spouse in a community of property marriage, the entire estate is wound up, and the surviving spouse is entitled to 50% of the net estate, so keep this in mind when drafting your will.
6. Conditional inheritances that are unlawful or unreasonable: Avoid conditions that are impractical, unlawful, or against public policy. Conditions such as requiring a beneficiary to marry (or not marry), divorce, or adhere to certain religious or political affiliations are considered unreasonable and will likely be disregarded by the courts. Additionally, conditions that restrict basic freedoms are likely to be declared invalid.
7. Digital assets with separate service agreements: Online accounts, social media profiles, cryptocurrency wallets, or cloud-stored data typically operate under terms of service agreements which outline the process for transferring access upon death. Due to their complex nature and separate governance, including specific instructions for these assets in your will could create confusion or prove ineffective. Instead, use digital legacy tools or provide separate, clear instructions to your executor.
8. Illegal or unenforceable bequests: Any bequest that involves illegal activities, contravenes the law, or is deemed impossible to fulfil will not be honoured. This includes bequests involving items prohibited by law, or instructing the executor or heirs to undertake illegal activities. Not only are these provisions void, but they could also invalidate parts of your will or complicate the administration process.
9. Instructions to care for pets without funding: While pets are beloved family members, simply leaving instructions in your will for someone to care for them without also leaving sufficient funding is not advised. Ideally, your will should clearly state who is to inherit the pet and make specific financial provision to fund the pet’s ongoing care.
10. Detailed personal grievances or family disputes: Your will should remain a clear, objective legal document. Avoid including detailed explanations, personal grievances, or airing family disputes. Doing so may inflame tensions, lead to family disputes, and result in delays or litigation. If there are specific reasons for excluding someone from your will, consult your attorney for the appropriate way to document this separately.
Your will is a powerful legal document intended to ensure your assets are distributed according to your wishes after your passing. However, the clarity and effectiveness of your will depend greatly on what you choose not to include. Always consult a qualified fiduciary specialist or estate planning expert when drafting your will to ensure your intentions align with the legal framework of South African succession law, providing your loved ones with a smooth and undisputed transition of your estate.
Have a super day.
Sue
