The A-Z of drafting a will

Drafting a valid Will is an estate planning fundamental. It’s an important document to get right because, after your death, there is no opportunity to provide your loved ones and heirs with further clarity or explanation. As such, it is important to familiarise yourself with the terms and clauses used in drafting a Will so that your intentions are accurately expressed. Let’s unpack:

Adiation: Adiation is where a beneficiary accepts the benefit bequeathed to her in terms of a Will. In terms of our law, a beneficiary is free to either accept (adiate) or repudiate a testamentary benefit. It is generally accepted that a beneficiary will accept a benefit received in terms of a Will, and no written acceptance is required to be signed. However, if the benefit has an obligation attached to it, the beneficiary will need to accept the inheritance in writing.

Assets: One of the primary functions of your Will is to ensure that your assets are distributed to your intended heirs and beneficiaries in the event of your death. However, not all assets fall within your deceased estate, and those that do not should ideally not be dealt with in terms of your Will. For example, living annuities do not form part of your estate and as the owner of a living annuity you can nominate beneficiaries to receive the proceeds when you die. In the event of your death, the benefits will not be subject to estate administration, will not attract estate duty, and will be passed directly to your beneficiaries.

Accrual: If you are married with the accrual system, it is important to keep this in mind when drafting your Will. Remember, the accrual will come into effect in the event of your death at which point the extent to which your respective estates have grown during the subsistence of your marriage will be added together and shared equally. To the extent that your estate exceeds that of your surviving spouse, your spouse will have an accrual claim against your deceased estate for that value.

Alternative guardian: If you have minor children, nominating a guardian in terms of your Will is essential. While doing so, keep in mind that you can nominate an alternative guardian in case the primary guardian you have nominated is not available if and when the time arises.

Attestation clause: The attestation clause, which appears at the end of a Will, confirms that the testator or testatrix attested (signed) the Will in the presence of two witnesses, and that all parties signed in the presence of each other.

Bequest: You can use your Will to make special bequests to a beneficiary who is then referred to as a legatee. However, it is important to make sure that you have sufficient liquidity in your estate to honour your bequests as any shortfalls can impact on the inheritance of your heirs.

Codicil: A codicil can be used to add or change an existing Will. Instead of redrafting the entire Will, a testator can draft a codicil which he then attaches to the original Will. Although a codicil must meet the same requirements as a Will, it is not necessary that the same people who witnessed the Will witness the codicil.

Co-executor: It is possible to appoint two or more people as executors to your estate in the form of co-executors, although this is not always advisable. Where two people are appointed as co-executors, problems and delays may arise where they reach a stale mate in making decisions. Three or more co-executors can also result in logistical problems especially where all executors are required to attend to matters in person.

Deceased estate: A deceased estate comes into existence when a person dies leaving property or a Will. Upon registration of a person’s death, anyone who has control or possession of any property of the deceased, or who is in possession of that person’s Will, can report the death by completing a death notice at the Master’s Office.

Divorce: If you get divorced, be sure to update your Will as soon as possible to ensure that your ex-spouse does not unintentionally inherit from your estate. In terms of Section 2B of the Wills Act, you essentially have a three-month window period in which to update your Will following a divorce after which it is assumed that you intended to leave your Will unchanged.

Date: Although it is not a legal requirement that you date your Will, it is always a good idea to do so. If your Will is not dated and you have previously drafted Wills in existence, you run the risk of creating confusion amongst your heirs as to which is the latest version of your Will.

Estate plan: Your Will is an important document in your overall estate plan as it stipulates exactly how you would like each asset to be distributed in the event of your death. However, it is important to ensure that the rest of your estate plan is fully aligned with the contents of your Will so as to avoid confusion and ambiguity.

Executor: Your executor essentially steps into your shoes in the event of your passing in order to wind up your earthly affairs. It is advisable to nominate your executor in terms of your Will, but keep in mind that the Master of the High Court will need to formally approve and appoint the executor through the issuing of what is called Letters of Executorship.

Executor’s Fees: The executor to your estate is entitled to charge 3.5% (excluding VAT) on the gross value of the assets in your estate, plus 6% on the income earned in your estate after death.

Fideicommissum: A fideicommissum is a provision in a Will where a person inherits an asset on the condition that it must pass to someone else at a future date or at a particular occurrence. It is designed to enable a person to retain assets, such as a farm, within the family for future generations, although there are statutory limitations on the length of time a fideicommissum can be used.

Foreign Will: If you have assets located in a foreign jurisdiction, you may require a concurrent Will that deals with these assets although this will largely depend on the type of assets you hold. Generally speaking, a foreign Will is almost always advisable if you own immovable property overseas or shares in an overseas company. For assets such as life insurance policies, a foreign Will is generally not needed.

Guardian: If you have minor children, you should take care to appoint a legal guardian for your children in terms of your Will. If you and the child’s other parent are guardians to your children keep in mind that, in the event of your passing, the surviving parent will assume sole guardianship of your children.

Guardian’s Fund: The Guardian’s Fund is responsible for receiving and managing money on behalf of those who are legally incapable or who do not have the capacity to manage their own affairs. This includes minors, unborn heirs, and missing or absent persons. Funds held in the Guardian’s Fund are invested with the Public Investment Commission.

Intestate succession: If you die without a Will or your Will is found to be invalid, you effectively die intestate. This means that your assets will be distributed according to the law of intestate succession as set out in the Intestate Succession Act.

Joint estate: If you are married in community of property, you and your spouse share a joint estate. Upon the death of the first-dying spouse, the entire estate is wound up and the surviving spouse has a claim to 50% of the common estate.

Life insurance: Life insurance is an effective estate planning tool as it allows you to nominate beneficiaries to receive the proceeds of the policy in the event of your passing. If you have life policies in place, avoid mentioning them in your Will as this can cause confusion. The beneficiaries that you have nominated on your policy will be paid directly by the relevant insurance company meaning there is no need to mention them in your Will.

Matrimonial property regime: The nature of your marital regime has bearing on your freedom of testation, and it is therefore important to understand how you are married before drafting your Will.

Names: It is important that you name and reference your beneficiaries correctly in your Will to avoid confusion. Be sure to include full names, middle names and surnames, as well as ID numbers when naming your beneficiaries.

Per stirpes: Per stirpes is a Latin term for a legal stipulation in your Will which requires that if one of your beneficiaries dies before you, his share of the inheritance will pass to his children. For example, your Will makes provision for your son and daughter to inherit your estate in equal shares. If your son dies before you, your son’s share of your estate will pass on to his children per stirpes.

Repudiation: In terms of our law, you are not obligated to accept an inheritance. Renouncing an inheritance is called ‘repudiation’ which is provided for in terms of Section 2C of the Wills Act. The consequences of repudiation of an inheritance and what will happen to the repudiated benefits will depend on the terms of the Will, if there is one.

Revocation clause: If you have previously drafted a Will, it is vital that you include a revocation clause in your new Will in which you expressly revoke all previously drafted Wills. If you die leaving two or more different Wills, this can cause dispute amongst your heirs.

Residue of estate: Your estate’s residue is everything that is left in your estate after all debts and administration costs have been paid, and after all legacies or special bequests have been distributed. It is always important to ensure that your Will has a clause that deals with the residue of your estate to ensure that you do not pass away partially intestate.

Signature: Special care should be taken when you and your witnesses sign your Will to ensure that your Will cannot be contested on these grounds. When signing your Will, remember that you and your witnesses must sign in full in each other’s presence. Further, be sure that each of you sign each page of the Will and ensure that no large blank spaces are left on any pages.

Testamentary trust: This type of trust is set up using the Will as the trust instrument or founding document. A testamentary trust comes into formation on the death of the testator whereupon any assets bequeathed to the trust will be duly transferred to the trust structure and administered by the nominated trustees.

Testator/Testatrix: A person in the male form drafting a Will is known as a testator, while the female form is known as a testatrix.

Usufruct: A usufruct is a type of personal servitude granted by a testator or testatrix wherein he/she gives someone the right to use a specific asset. For example, a husband may include a usufruct in his Will which grants his wife the right to use the home until her death, following which their children would inherit the asset. In such a case, the wife as the usufructuary will have the rights and enjoyment of the property during her lifetime, while the children enjoy the right of ownership (bare dominium) while the wife is still alive. Upon the wife’s death, full title to the property will vest in the children.

Valid Will: When drafting your Will it is important to ensure that it meets all the requirements of a valid Will. These requirements are set out on the Department of Justice’s website:

Videos and voice recordings: Where a person makes a video or leaves a voice note expressing their wishes, note that this does not constitute a last will and testament.

Witness: In order for a Will to be valid it must be witnessed by two people over the age of 14 who are of sound mind. The witnesses must sign in the presence of the testator or testatrix and, while they are not required to understand the contents of the Will, they must be able to attest to the testator’s signature.

Wills Act: The Wills Act No. 7 of 1953, which was slightly amended in 1996, governs wills in South Africa and, amongst other things, sets out the requirements of a valid Will including that all wills must be handwritten or typed.

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