Your Will gives expression to your last wishes in the event of your passing and is, therefore, an important document to get right as, once you have passed, there is no way for your loved ones to question your intentions or obtain clarity in the case of vague or unclear wording. While we always advise that you seek input from a fiduciary expert when drafting your Will, this article is designed to provide a basic guide for those intending to draft a Will.
Something that many people tend to overlook is that all previous Wills should be both physically destroyed and revoked in writing as failing to do so can cause uncertainty for those left behind -especially if one or more of the Wills has not been dated. Remember, it is not a legal requirement that your Will be dated although it is always advisable to do so. As such, be sure to destroy all copies of your old Will and then expressly exclude all previous Wills, codicils and testamentary writings at the beginning of your new Will. If you have separate Wills dealing with your South African and offshore assets, be sure that your revocation clause expressly revokes only your South Africa Will as failure to do so can result in your foreign Will being inadvertently revoked.
At the beginning of your Will, be sure to set out your personal details, including full names and ID numbers, so that you can clearly be identified as the testator or testatrix after your passing. This is especially the case where family names are passed down through generations which results in multiple members of the same family having identical names. As your marital regime has a significant bearing on your estate planning, it is a good idea to include your spouse’s full name and ID number and the nature of your matrimonial property regime.
The primary aim of your Will is to ensure that your earthly belongings are distributed to the correct person and in the appropriate manner and quantity after your death. To ensure that this is achieved, be sure that your Will deals only with those assets that fall within your estate such as fixed property, moveable property (for example, vehicles, art, jewellery and antiques), discretionary investments such as a unit trust portfolio, and cash. Remember that assets such as living annuities & retirement funds do not form part of your dutiable estate and can be distributed directly to your nominated beneficiaries. Should no beneficiaries be nominated, there could be delays and unnecessary executor fees paid as your executor will need to distribute via the deceased estate. Proceeds of life insurance policies, while they are deemed assets in your estate, are generally not dealt with in terms of your Will as you can directly nominate a beneficiary or beneficiaries.
If you have offshore assets that have been dealt with in terms of a foreign Will, avoid making mention of these assets in your current Will. Once again, it is important to include your heirs and legatees’ full names and ID numbers to avoid confusion. Bear in mind that your heirs are those who stand to inherit the residue of your estate after all debt and estate costs have been settled and all bequests have been paid, and it is therefore important to include a residue clause. If you fail to include such a clause, you run the risk of dying partially intestate in that failing to specifically deal with your estate’s residue means failing to name an heir and, where no heir is named, the assets will devolve according to the laws of intestate succession.
If you intend to make special bequests in your Will, ensure that you clearly identify what is being bequeathed. If you intend bequeathing money, it is advisable to indicate the specific amount of the bequest rather than a proportion. Where the bequest is in the form of property – whether moveable or fixed property – it is important that you clearly identify the bequest. For instance, a vague reference to ‘the art in my lounge’ will not suffice as such as clause can be contested. Rather, take care to specifically name each piece of artwork, the artist and any other identifying information to avoid challenges to your intentions.
When making a bequest in your Will, keep in mind that a bequest can be unconditional or subject to a condition. An unconditional bequest is, for example, where you leave an asset to a named legatee without any obligations that the legatee is required to fulfil. A bequest which places an obligation on the legatee before she can inherit can be subject to one or more types of conditions, although it is important to ensure that these conditions are carefully worded and that they are in no way illegal or immoral. Bequests can be more complex than they sound for a number of reasons including that they can adversely affect your estate liquidity if not carefully accounted for. Remember, when it comes to the distribution of your estate, the order of entitlement is as follows: Firstly, the costs of estate administration are settled following which your creditors are paid. Thereafter, your legatees receive their respective bequests after which your heirs are awarded whatever is left in your estate.
When making your bequests and determining how your assets should be distributed, don’t lose sight of the financial obligations that you have in terms of law such as your duty to provide for your minor children or to provide maintenance for your surviving spouse, keeping in mind that failure to provide adequately for them can result in claims being brought against your deceased estate – which is something that you will no doubt wish to avoid. If you are divorced and have maintenance obligations towards your ex-spouse and/or children, you will need to provide for this obligation when structuring your estate plan and drafting your Will.
Think carefully about whom you would like to nominate as executor of your estate as these details need to be included in your Will. Upon your death, your executor will take control of all the assets in your estate and ensure that they are distributed in line with your wishes. Your executor will need to navigate the legal, financial, tax and administrative aspects of estate administration – a job which, depending on the complexity of your estate – could take a year or more to complete. As such, consider appointing a fiduciary expert who specialises in estate administration to give yourself the best chance of having your estate wound up efficiently and effectively. Remember, the tariff allows your executor to charge up to 3.5% excluding VAT on the gross value of assets in your estate, plus 6% excluding VAT on income accrued and collected after your death, although these fees can be negotiated upfront.
If you have minor children, you will no doubt want to make adequate provision for them in terms of your Will which would include nominating a guardian to care for them in the event of tragedy and they are left with no natural guardian. Again, think carefully about who would be best suited to care for your children if tragedy struck giving consideration to their age, location, morals and values, religious beliefs and financial stability. If you’re planning to set up a testamentary trust for your minor children, the wording in your Will should be carefully drafted so that your trustees have a clear mandate for the management of the trust assets and how you would like the interests of your children to be protected if you are no longer around. Remember, your Will is effectively the founding document for the trust which will provide for your children’s future, so it is important to clearly set out both your intentions and the duties and obligations of your trustees.
Once you are satisfied that the wording of your Will is fully aligned with your estate planning wishes, be sure that you and your two competent witnesses attest to and sign the document in each other’s presence as per the legal requirements. Importantly, ensure that neither of your witnesses stand to benefit in terms of your Will as this could disqualify them from receiving their inheritance. Remember, in the event of your death, the Master of the High Court will require an original signed copy of your Will so consider where and how to keep the document so that it can be easily found by your loved ones.
Have a wonderful day.
Sue
