Drafting your will: Make your intentions clear

A well-drafted will should make the intentions of the testator clear and leave no room for confusion or ambiguity as any uncertainty as to the testator’s intentions can lead to dispute, resentment or even protracted legal proceedings. The wording of a will should be watertight, leaving no question marks as to how the testator intended his worldly belongings to be distributed. In this article, we provide some guidelines on how to make your testamentary intentions clear.

Use clear and unambiguous language: Be accurate and specific when drafting your will, and avoid using any vague language that may leave your loved ones guessing. For example, a clause that reads ‘I leave all my vehicles to my son’ is unclear and wholly insufficient in that it fails to identify which vehicles the testator is pertaining to nor the name of his son. Does ‘all vehicles’ include cars only, or does it extend to motorcycles, boats, trailers, and e-bikes? Further, even if the testator only has one son, it is still a good idea to include the son’s full name and surname together with his identity number. The wording in your will needs to be clear and concise leaving no room for misinterpretation or contestation.

Have your will correctly witnessed: There are strict criteria governing the witnessing of wills and it is essential that these are adhered to. Your will must be witnessed by two witnesses who are over the age of 14 and who are of sound mind. It is not necessary that the witnesses understand the content of your will, but rather that they can attest to you signing the will in their presence. Remember that any person who stands to benefit from your will should not sign as a witness to your will as they stand to be disqualified from inheriting.

Date your will: Although it is not a legal requirement to date your will, it is preferable to do so. Failure to date your will can result in confusion as to which is the latest version of your will, especially if you have signed a previous will. This may result in unnecessary delays in the estate administration process.

Sign every page: Another legal requirement for the validity of your will is that you must sign in full at the bottom of each page, while your witnesses must sign in full at the bottom of the last page as close to your signature as possible. However, our advice is to get your witnesses to sign at the bottom of each page of your will. Remember, failure to sign the will correctly can result in it not complying with the terms of the Wills Act and can result in the document being declared invalid.

Revoke previous wills: If you have previously signed a will, it is important to specifically revoke all previous wills at the outset of your new will. Again, failure to do so can result in confusion and delays in the administration process – and may lead your loved ones to question whether you intended to revoke your previous will or whether you intended the two documents to be read together.

Include a residue clause: Be sure to include a clause that deals with the residue of your estate, being whatever is left after all debts, administration costs and legacies have been distributed. Failure to do so may result in you dying partially intestate in which case the residue of your estate will devolve on your heirs in accordance with the laws of intestacy.

Update your will regularly: Major life events should create an automatic trigger for reviewing and updating one’s will, particularly events such as birth, marriage, adoption, death, divorce, or the acquisition of property. In the aftermath of divorce, many people forget to update their wills – which can result in unintended consequences for their loved ones. If you do not update your will within 3 months of getting divorced and your ex-spouse is a named beneficiary in your Will, it will be assumed that you intended her to inherit. In terms of Section 2B of the Wills Act, if you die within three months of your divorce, your ex-spouse will be excluded from inheriting in terms of your Will, unless a contrary intention can be shown from the wording of the Will.

Ensure it is independently drafted: If you outsource the drafting of your will to another person, ensure that the person who writes or types it out is not a named beneficiary in your Will as this can disqualify him or her from inheriting. 

Consider a testamentary trust: If you have minor children, consider making provision for a testamentary trust in terms of your will to ensure that those assets are protected until your children reach a pre-determined age. This estate planning tool comes into formation in the event of your death at which point those assets bequeathed to the trust become property of the trust and are managed by your nominated trustees in the best interests of your minor children until they are old enough to manage their own financial affairs.

Appoint a guardian for your minor children: Again, if you have minor children, be sure to nominate a legal guardian for your children in the event of your passing. If both parents are still alive, the child’s other parent will be the natural guardian in the event of your death. Be sure to discuss the matter with the person you’d like to act as guardian to your child to ensure that he/she agrees to accept the role.

Only mention assets that fall in your estate: Avoid mentioning assets in your will that do not form part of your estate as this can result in unnecessary confusion. For instance, the proceeds of life policies payable to your nominated beneficiaries do not form part of your estate and there is no need to mention these policies in your will. The insurance company will pay the proceeds directly to those that you have named as beneficiaries. Similarly, the death benefits from your retirement funds will be distributed in terms of the Pension Funds Act, and there is no need to mention these funds in your will.

Clearly identify heirs and beneficiaries: Your will should specifically identify an heir or beneficiary, bearing in mind that there could be a number of people in the family with the same name. To ensure that the correct person inherits, be sure to include their full name, ID number as well as their relationship to you.

Honour your financial obligations: If you have any financial obligations, such as maintenance obligations in terms of a divorce order, be sure to make provision for these in your will. Failing to make adequate provision for those you are legally obliged to provide maintenance which can result in claims for maintenance being brought against your estate which may result in unnecessary delays.

Understand your estate liquidity: Before making special bequests in your will, be sure to determine whether there is sufficient liquidity in your estate to honour these bequests. Keep in mind that once all debt and administration costs have been discharged, the executor will pay bequests to your legatees, and only after that will your heirs inherit – so make sure that any bequests made do not adversely impact the inheritance intended for your heirs.

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