Your Will: What to include and exclude

While there is no set form or template that must be adhered to when drafting your Will, there is a generally accepted framework which can be used as a guideline for ensuring that all relevant and requisite information is included in this all-important document. After your death, there is no way for your loved ones to question your intentions or meaning and, as such, drafting a Will that is free from ambiguity and opaque meaning is an estate planning imperative. In this article, we look at a number of important clauses when it comes to drafting your Will.

At the outset, it is important that the testator and/or testatrix are clearly identified, including full names, surnames and identity numbers, as well as the nature of their matrimonial property regime – keeping in mind that a person’s marriage contract has a direct bearing on their estate planning. The identifying paragraph is also a good place to revoke all previous Wills so as to avoid confusion amongst your heirs and beneficiaries. The identifying paragraph, including the revocation clause, could read something like this:

‘We, DINO (ID NO XXXX and THEMBA PLAAITJIES (ID NO XXX married out of community of property, subject to the accrual system, hereby revoke all wills, codicils and other testamentary writings previously made by us and declare the following to be our last will and testament.’

As a cautionary word, if you have a foreign Will for any assets owned offshore, be sure that the revocation clause is carefully worded so as to not inadvertently revoke your overseas Will.

Where a couple is married, it often makes estate planning sense to bequeath their respective estates to each other in the event of the death of the first-dying spouse – and such scenarios should be supported by a documented estate plan so that you can fully understand the effects of the various scenarios and plan accordingly, including the eventuality of simultaneous death. Such a clause could be worded as follows:

‘The first dying of us bequeath his/her estate to the survivor of us, provided that the survivor outlives the first dying for a period of 30 (thirty) days. Should the survivor of us not survive the first-dying for a period of 30 (thirty) days or die without leaving a valid Will, we bequeath our separate estates in equal shares to…’

Your Will should also clearly nominate an executor to your estate and, given the onerous job of an executor, it is important that you appoint someone with the necessary skill and financial acumen. In your Will, you can also make provision for an alternate executor in case the first executor is unable or not willing to accept the appointment. Some testators choose to nominate two or more joint executors to provide additional checks and balances, although this can lead to disputes and delays, especially if the executors cannot reach agreement on a particular course of action. In such circumstances, the executors may need to request a directive from the Master’s Office, which can unnecessarily delay the winding-up process. The executor nomination clause would read something like this:

‘I nominate [Name of law firm/fiduciary company], or a director of [law firm/fiduciary company], in his/her personal capacity, as Executor of my estate. The said Executor shall not have to furnish security to the Master of the High Court.’

If you intend to nominate a fiduciary company or law firm, keep in mind that you are able to negotiate a more favourable executor’s fee which can be recorded in your Will. As it currently stands, legislation permits an executor to charge an amount of 3.5%, excluding VAT, on the gross value of assets in an estate, plus an amount of 6% on any income collected after the death of the deceased.

Obviously, one of the key functions of your Will is to distribute your assets amongst your heirs and loved ones, and this can be done in several ways. For instance, you may wish to bequeath a cash legacy to someone in which case you would need to specify the legatee (i.e. the person you wish to receive the bequest) and the nature of the bequest. A legacy would appear along the following lines:

‘I give and bequeath the following legacies:

To my best friend, JOHN GLADMORE, the sum of R100 000.00 (One Hundred Thousand Rand). In the event of JOHN GLADMORE predeceasing me or being unable or unwilling to inherit for whatever reason, then such legacy shall form part of the residue of my estate.’

However, before making cash bequests in your Will it is important to ensure that there is sufficient liquidity in your estate to honour them. Remember, the residue of your estate – which is what your heirs ultimately inherit – is what is left after all debts and estate costs have been paid, and after all, bequests have been made, so it is important to ensure that the inheritance intended for your heirs is not compromised.

When dealing with fixed property, it is important that you clearly identify the property and your intention for the property. For example, avoid vague references to ‘my home’ or ‘my primary residence’ as these terms do not clearly identify the asset. For instance, if your intention is to bequeath your primary residence to your daughter, consider the following wording:

‘I bequeath my interest in the immovable property known as Valley View, situated at 135 Constantia Avenue, Cape Town, Erf No 928, or such other interest in immoveable property that constitutes my family home at the time of my death to my daughter, [NAME, SURNAME, ID NO…]…’

Another hugely important clause to include in your Will is commonly referred to as the ‘residue clause’. The residue of your estate is everything that is left after all estate costs and debts have been paid, all legacies and bequests have been honoured, and those assets intended for the testamentary trust have been transferred accordingly. Your residue clause should therefore specifically name and identify those people who should receive the residue of your estate and in what proportions. For example:

‘I hereby direct that the remainder and residue of my estate, property and effects shall devolve on my brother, [NAME, SURNAME, ID NO…], or his issue per stirpes.’

If you have minor children, you will no doubt want to make adequate provision for them and appoint a legal guardian in the event of your passing. Remember, children under the age of 18 lack the legal capacity to enter into contracts and manage their own affairs, so appointing a guardian will ensure that your minor children will be placed in the care of a suitable person who you trust will manage their affairs in their best interests until they are old enough. A guardian nomination could be worded as follows:

‘In the event of any child of ours being a minor at the time of the death of the last dying of us or the last dying not making an alternative appointment, we direct that upon the death of the last dying of us any rights of custody or guardianship which either of us may have exercised prior to our death over such child shall pass on to GLADYS KNOMO (ID NO XXXX) who shall not be required to furnish security for the fulfilment of such duties in terms of this appointment.’

Remember, while the distribution of retirement fund benefits is governed by Section 37C of the Pension Funds Act in terms of which the onus falls on the retirement fund trustees to identify your financial dependants and apportion the proceeds accordingly, you can stipulate in your Will that any proceeds due to your minor children should be paid to the trustees of the testamentary trust.

Your guardian clause is something that you should revisit regularly, bearing in mind that family relationships and friendships change over time and, as your children grow, you may wish to review who best would fulfil the role of guardian if you were no longer around. If you have minor children, you may want to use your Will to set up a testamentary trust to protect their assets until they reach the age of majority. Again, it is important to ensure that your Will is unambiguous in your intention to set up a trust, the identification of those assets intended for the trust, the identities of the trustees, as well as the powers, duties and mandate of the trustees. Such a clause could be worded as follows:

‘The bequests to beneficiaries who have not reached the age of 25 (Twenty Five) years, must be held in trust by the Trustee appointed herein to administer in separate trusts for the purposes and with the powers and subject to the conditions hereinafter set forth…..’

As mentioned at the outset, the nature of a person’s matrimonial property regime can impact on one’s estate plan and that of one’s heirs and beneficiaries. As such, you may wish to expressly ensure that any assets that accrue to any beneficiary in terms of your Will should be excluded from their joint estate, if married in community of property, or from their accrual regime, if married out of community. Wording of such a clause could appear as follows:

‘No benefit accruing to any beneficiary in terms of this Will, nor the fruits derived therefrom, shall form part of the joint estate of any accrual regime of such beneficiary and any present or future spouse of his/hers….’

Avoid copying and pasting clauses and wording from templates and DIY legal documents as you run the risk of incorporating them inappropriately for your purposes. Although you may be tempted to use your Will to express emotions and to justify your reasons for distributing your assets as you have done, avoid using your Will for such purposes. Once your Will has been drafted, you must be absolutely certain that if anyone was tasked with administering your estate, your intentions and instructions are abundantly clear and unambiguous.

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