The last thing any testator wants is for his will to create confusion. Here’s how to avoid causing unnecessary confusion, unintended consequences and possibility invalidity when drafting your will.
Know what your intentions are
Before drafting your Will, it is important to be clear in your mind what your attentions are. Who do you want to distribute your assets to? Who do you specifically not want to inherit from your estate? Do you have any special needs children that you want to provide for? What are your legal obligations to support? What charities or organisations do you want to make provision for?
Select your executor carefully
Give careful consideration when appointing an executor to your estate. Traditionally, banks and insurers were commonly appointed as executors, although this trend has now changed. Instead, many people choose to nominate smaller legal firms or fiduciary practices that specialise in deceased estates to execute their final wishes. While you may choose to appoint a close friend or family member, be aware of the inherent risks in doing so. Relationships change over time, people become ill or die, and family dynamics can cause tension between your nominated executor and intended heirs. Ideally, appoint someone with sound financial and legal expertise who is independent from your inner circle and who can remain objective.
Appoint an alternate executor
Be sure to nominate an alternate executor to your Will in case the person you have nominated as primary executor is no longer alive or no longer willing to perform the role. If you have not nominated an alternate, the Master will appoint someone to wind up your estate and the person they appoint may not be ideal.
Ensure the Will is correctly signed
The Wills Act sets out very specific criteria for the signing of a valid Will, and any non-compliance with these criteria can render your Will invalid. Firstly, your two witnesses must be competent and must sign in full at the bottom of each page. Although it is not a legal requirement to date your Will, it is highly advisable as this will help determine which Will is the latest in the event that other versions of your Will exist at the time of your death.
Choose your witnesses carefully
When choosing witnesses for your Will, remember that no one who stands to benefit from your estate should be allowed to witness your Will. If a beneficiary to your Will also signs as a witness, he/she can be disqualified from inheriting. To avoid any legal challenges for your Will, do not allow your executor, guardians or trustees witness your Will.
Revoke your previous Wills
Make sure your Will includes a clause which specifically revokes all previous Wills. If you fail to revoke any previous Wills that you’ve made, this could have the effect of your Wills being read and interpreted together. Simply tearing up any previous Wills is not sufficient revocation as it could be argued that it was not your intention to destroy the Will, or that the document was maliciously destroyed by a third party.
Nominate your beneficiaries clearly
When naming beneficiaries in your Will, include their full name and surname, identification number and their relationship to you (i.e. daughter, mother, etc) so that there can be no confusion as to their identity. References to ‘my family’, ‘my spouse’ or ‘my children’ can lead to confusion, expensive legal challenges and delays in winding up your estate. Further, if you have nominated beneficiaries who reside overseas, include contact details for them so that they can be more easily located.
Do your liquidity calculations
When drafting your Will, ensure that you do your liquidity calculations to ensure that your estate can cover its costs. The executor will be required to pay CGT, income taxes, estate duty, transfer costs on property, maintenance claims and any other liabilities in your estate, and is entitled to his executor’s fees. If there is not enough liquidity in your estate, the executor may be forced to sell certain assets in order to cover the costs, and this can have devastating financial consequences for your heirs.
Be careful of distributing assets equally among heirs
Think carefully before distributing your assets equally amongst multiple heirs as this can cause practical problems. For instance, leaving the family home to your spouse and three children in equal, undivided shares can give rise to uncertainty over who has the right to live in the house, whether it can be sold, or whether rental is payable.
Deal with the residue of your estate
Make sure that you include a clause in your Will that specifically deals with the residue of your estate. This is known as a ‘leftovers’ clause. While you may have bequeathed specific assets to heirs and legatees, the ‘leftovers’ clause is a catch-all as to how you would like anything else remaining in your estate dealt with. If you do not include a ‘leftovers’ clause, the residue of your estate could be distributed in terms of the laws of intestacy.
Beware of handwritten Wills
Beware of getting a beneficiary to help you write or type your Will as this can disqualify them from inheriting. This is often the case where an elderly person asks a loved one to write out their last will and testament without realising that this can negate their final wishes. Ensure that the person writing our your Will does not stand to inherit anyone from your estate.
Avoid using overly complicated structures
Although estate planning can be complex, avoid using overly complicated wording or structures unnecessarily. Limit the use of legal terminology and jargon and ensure that the person drafting your Will is duly qualified to do so. When setting up local and/or foreign trusts and companies, be sure to understand the associated costs of maintaining them in foreign jurisdictions and currency.
Don’t create a burden for your executor
Your Will should be drafted in such a way that your estate can be wound up as quickly as possible with no dispute to its validity and for the benefit of your heirs. Avoid making unreasonable demands or requests in your Will which only serve to burden the executor and slow down the winding up process. Attempts to ‘rule from the grave’ – for instance, only allowing your surviving spouse usufruct of the property if she remains single – is impractical and impossible to manage.
Remember your duty of support
Although you do enjoy freedom of testation, this remains limited by your duty to provide for your minor children and surviving spouse. If you do not make adequate provision for your surviving spouse or minor children in your Will, they have the right to claim from your estate for support.
Deal with your foreign assets appropriately
Be sure to seek advice regarding your foreign assets to ensure that you deal with them appropriately. Generally speaking, your South African Will should be sufficient to deal with any moveable assets, such as bank accounts and investments, that you have offshore. However, if you have immoveable property or business interests offshore, you may need to have a foreign Will drafted in respect of these.
Avoid incomplete amendments
If you make amendments to your Will, ensure that you meet the strict criteria bearing in mind that any amendment must be made in the presence of two or more competent witnesses who sign in your presence.
Your matrimonial property regime matters
If you are married in community of property, your freedom of testation is limited. When drafting your will, bear in mind that you are only able to bequeath 50% of the joint estate, and that the other 50% belongs to your spouse. When you pass away, the joint estate is dissolved and your surviving spouse will have a claim for 50% of the joint estate, and the other half of the net estate is yours to bequeath.
If you are married out of community of property with the accrual system’, bear in mind that your surviving spouse will be entitled to claim for her half share of the accrual where the value of your estate exceeds hers.
Make provision for simultaneous death
If you are married, be sure to include a simultaneous death clause to provide for the eventuality of you and your spouse dying together, for instance in the same car accident. In addition, be sure to nominate a guardian for your minor children in your Will. If you and your spouse die at the same time, your minor children will be placed in the care of your nominated guardian and, if not guardian has been appointed, the Master will make a determination in this regard.