Your will is one of the most important documents you will ever draft and, because it is only given effect to after your passing, ensuring its validity and actionability is paramount. Your Will should be drafted so that it can speak for you in a clear, unambiguous manner when you are no longer around. As such, when drafting or updating your will, be conscious of the following errors:
Vague, unclear or ambiguous language: It is vital to make sure that your wishes are expressed in a clear and unambiguous way, keeping in mind that any uncertainty as to your intentions can result in protracted legal proceedings and delays in winding up your estate. For example, a testator may refer to his son as the ‘sole beneficiary’ of his estate in the first paragraph of his Will, but then make a cash bequest to a friend later on in the Will. This dichotomy can create confusion as to the intentions of the testator and may create grounds for either the son or the legatee to contest the Will.
Witnesses who stand to benefit from the Will: Ensure that no one names in your Will signs as a witness when attesting your Will, including heirs, beneficiaries, legatees, executors, guardians or trustees or any of their spouses. While your Will is not likely to be found invalid, those signing as witnesses may be disqualified from inheriting in terms of your Will.
Not dating your Will: Although dating your Will is not a legal requirement in terms of our law, it is always advisable to do so. This is particularly important if you have an existing Will that are planning to replace with a new version. By dating your Will, your executor will be able to clearly identify which document contains your last wishes.
No revocation clause: When updating your Will, be sure to specifically revoke all previous Wills by including what is referred to as a ‘revocation clause’. This clause should ideally revoke all previous Wills, codicils and testamentary writings to prevent a situation where, for instance, the executor is left with your new Will and a codicil from your previous Will which has not been expressly revoked. Where you do revoke a previous Will, it is advisable to recall the original document and physically destroy it.
Not clearly defining beneficiaries: It is essential to clearly identify your beneficiaries, especially where there is a common family name that is shared by multiple members of a family. To avoid confusion as to the identity of the intended beneficiary, be sure to include an ID number and physical address.
No substitution or successive heirs: While identifying your heirs is important, it’s also important to nominate successive heirs to deal with the eventuality that one or more of your heirs predeceases you. If you are silent on what happens in such circumstances, your executor must refer to the Wills Act for guidance on who stands to inherit their portion, and this may not be in line with your wishes.
No executor nominated: Similarly, be sure to nominate both an executor and a successive executor in case your first nominee is not available when the time arises. If you fail to nominate an executor, the Master’s Office will appoint someone to fulfil this role which is not ideal. While you may be tempted to nominate a family member who indicates they are willing to perform the role free of charge, keep in mind that the job of executor is an onerous one which is best outsourced to a fiduciary expert.
Distributing assets equally amongst heirs: While distributing an asset equally amongst multiple heirs may seem equitable, keep in mind that it is not always practical. For instance, leaving your vehicle to your three children may result in logistical problems when it comes to your heirs agreeing on who ultimately gets the car.
Not making provision for minor heirs: If you have minor heirs, it is advisable to make provision for a testamentary trust in your Will to ensure that, upon your death, those assets intended for their benefit are housed in a trust where they will be administered by your nominated trustees. Failure to do so may result in funds intended for your minor children being administered by the state-run Guardian’s Fund.
Not dealing with the residue of your estate: The residue of your estate is what is left after all taxes and creditors have been paid and all bequests honoured, and it is important to specifically state how you want the residue of your estate dealt with. If you don’t include instructions regarding the residue of your estate, you run the risk of dying partially intestate meaning that the residue of your estate will be distributed according to the laws of intestate succession.
Making cash bequests: Before making cash bequests in your Will, make sure that there will be sufficient liquidity in your estate to honour such bequests. Remember, your executor will need to pay all creditors and settle your estate costs first, following which cash bequests will be made to any named legatees – and only thereafter will your heirs receive the residue of your estate. If your estate lacks liquidity, your executor may need to realise assets intended for your heirs in order to honour your cash bequest.
Not keeping the original in a safe place: On your passing, the Master’s Office will require an original of your Will. If the original cannot be found, an application can be made to the high court to have a copy of your Will accepted, although the court will need to be satisfied that the copy is both valid and that it represents the intentions of the testator/testatrix.
Leaving out signatures: It is a requirement that the testator/testatrix signs each page of the Will and failing to do so can result in the Will being declared invalid. While it is not a legal requirement that the witnesses sign each page, it is advisable that the testator/testatrix and both witnesses sign each page in each other’s presence.
Using a will template: While for simple estates, using a DIY Will template may be perfectly adequate, very often those drafting such a Will fail to adhere to the legal formalities such as who can witness your Will, where and how to sign, and which important clauses to include or exclude depending on your intentions.
Amending rather than re-drafting your Will: If you are contemplating making amendments to your existing Will, think twice about doing so. Not only do you run the risk of the document looking messy, but there’s also a chance that you fail to comply with the validity requirements in terms of additional signatures and witnesses.
Not being specific about encumbered assets: The assumption in our law is that where there is debt attached to an asset, that asset is intended to be bequeathed free of the debt. As such, when bequeathing an encumbered asset, it is best to be clear about how you intend the debt to be dealt with in the winding up process.
Collation: Our law assumes that parents intend for their children to benefit equally from their estates – a concept known as collation. By way of example, let’s assume that a testator has three daughters who stand to inherit the residue of his estate. However, during the testator’s lifetime, he gave daughter X a lump sum amount of R500 000 to help her purchase a property. Daughters Y and Z did not receive any benefit. On the testator’s passing, collation means that daughter X would receive proportionately less from her father’s estate unless the testator specifically excludes the operation of collation in his Will. Remember, collation only applies to siblings, including illegitimate and adopted siblings.
Dealing with life policies and living annuities in will: Certain assets, such as the proceeds of life policies and living annuities, are not subject to the estate administration process. The distribution of the proceeds from such policies will take place according to the beneficiary nomination forms you completed for each policy. As such, it is better to avoid mentioning these policies in your Will as they fall outside of your estate and will be administered separately.
Including emotions in your Will: Your Will is a legal document and it is advisable to leave your emotions out of it. Emotive language can create confusion and heartache amongst your heirs and make dealing with your death even more traumatic.
Not updating your Will: Not updating your Will regularly to ensure that it remains relevant to your personal circumstances as and when they change can result in a set of unintended consequences. Any change in circumstance should prompt a review of your Will including marriage, birth or adoption of a child, death of an heir, beneficiary or legatee, divorce, inheritance, the sale of immoveable property, minor children reaching the age of majority, or the death of any person named in any capacity in your Will.
Have a fabulous day.
Sue
