As a person’s circumstances change over time, an important document that is often overlooked is one’s last will and testament. Being arguably one of the most important documents you’ll ever sign, your will deserves regular attention – especially when it comes to reviewing its contents – particularly when it comes to the following:
Any change in your personal circumstances can necessitate a review of your Will, specifically a change to your marital status, or where there have been additions to your immediate family such as the birth or adoption of a child or grandchild. Of course, if you’ve recently been divorced, updating your will should be an imperative. Keep in mind that in terms of Section 2B of the Wills Act, you are effectively provided with a period of three months from the date of your divorce in which to update your will. The effects of this section are such that should you pass away within three months of your divorce without having updated your will, it will be assumed that your ex-spouse had died before the date of divorce meaning that he/she will not stand to benefit from your estate. Failure to update your will within this time frame will mean that, in the event of your passing, it will be assumed that you had intended your ex-spouse to inherit as per the dictates of your will.
Friends and relationships change over time and it’s important to check that the guardians you originally nominated for your minor children are still the people you would choose to raise them should you no longer be around. Remember, your child’s guardian will exercise full parental rights and responsibilities and will be required to administer any property inherited by your minor child until they reach age 18. The guardian will be required to make all decisions regarding your child’s schooling, extra-mural activities, vocational guidance, and religious instruction, and assist or represent your minor child in administrative, contractual, and/or legal matters until he/she reaches maturity, and it’s important to get this nomination right. As a word of caution, if you have nominated your parents or your spouse’s parents as guardians for your minor children, it is important to assess their current health and whether they are realistically still physically capable of taking care of your children should you pass away. As your parents age, you may find that you are less comfortable with their ability to be guardians of your children. One option is to nominate an alternate guardian in terms of your will to provide for the eventuality that your parents are not capable of fulfilling the role. Another important factor is to assess where your nominated guardian lives in relation to you and your family, particularly if your guardian has moved cities or subsequently emigrated.
Similarly, assess whether those that you appointed as trustees to your testamentary trust are still those that you trust implicitly to make decisions in the best interests of your minor children. You may want to nominate a different set of trustees or nominate alternate trustees in the event that one or more of them are not available when the time comes. Do not underestimate the important role that your trustees will play in managing and investing the trust assets and making decisions with regard to the care of your children, so consider ensuring that one of your trustees is an independent person with experience in managing trust assets.
Double-check your executor nomination to ensure that the person or company you appointed is still the best person for the job. Check that the company appointed to be executor is still in existence, bearing in mind that companies (law firms, banks, investment houses, etc.) merge, close down, and/or change name which could leave your loved ones in a position where they are unable to identify or locate your executor. If you’ve nominated a family member as executor, consider to what extent family dynamics have changed since first nominating that person and whether he/she is still the appropriate person to step into your shoes in the event of your passing.
The death of beneficiaries
If any of your nominated beneficiaries have subsequently died, it is essential to review your will. A per stirpes clause, or by representation clause, is a legal stipulation included in a will that requires that if a beneficiary dies before you, that beneficiary’s share of the inheritance will pass to his/her heirs. For example, if your will dictates that your estate should devolve on your son and daughter in equal shares but your son pre-deceases you, the inclusion of a per stirpes clause will mean that your son’s share of your estate will pass to his children. However, relationships change over time and the effects of the per stirpes clause may no longer be in line with your intentions – thus, upon the death of any beneficiary or heir, it is always advisable to review one’s will.
If you’ve made special bequests in terms of your Will, it may be worth reviewing them to determine if they remain aligned with your intention. This is particularly the case where you have bequeathed a fixed Rand amount to a specific legatee which is now outdated in relation to your net worth as it currently stands. Further, make sure that your legatees are still alive, that there aren’t any other people to whom you would like to make a special bequest, and that your estate is sufficiently liquid to honour any bequests while not impacting on your heirs’ inheritance.
The acquisition of foreign assets subsequent to drafting your will may necessitate a review of your will, although this would depend on the nature of the asset and the jurisdiction in which it is held. Generally speaking, a foreign will is almost always advisable if you own immovable property overseas and/or if you own direct shares in an overseas company. Fixed property will need to be transferred according to the laws of the land and you will need to ensure that all formalities are complied with. For assets such as life insurance policies, a foreign Will is generally not needed. As a word of caution, when setting up concurrent wills, be sure to make it clear which assets are being dealt with in terms of each will. For instance, when setting up your South African Will, make sure that the document specifically states that it deals with all assets held in the Republic of South Africa. Similarly, your foreign Will should be specific in terms of which country’s assets it is dealing with thereby ensuring that your wills are complementary and fully aligned with your estate planning goals.
The original of your will
One of the requirements for a will’s validity is that the executor must obtain an original signed copy of the document. If you only have a copy of your will and are unsure as to the location of the original, it may be advisable to redraft your will entirely. Ideally, ensure that you and your witnesses sign three originals of your will and that each original is stored in a separate, safe location.
Have a wonderful day.