Authors: Stacey Pardesi – Associate
Supervised by: Arnold Shapiro – Consultant
A will is the most important document you can draw in your lifetime. A well-drawn will allows the orderly distribution of your estate, gives effect to your wishes, and brings order and dignity to your affairs when you are no longer here to attend to these matters.
The Wills Act prescribes the formalities that direct who can make a will and, in this event, who signs, when and where.
The Wills Act does not prescribe content, and therefore the inclusion or exclusion of any clause will not validate or invalidate your will.
Your will is your constitution and will be given effect to as drafted. Make sure it is properly drafted.
Consider the following when drafting your will
Asset and liability assessment: Compile an inventory of your assets and liabilities. This will clarify the value of your estate and how you would like it to be distributed, as well as determine the liquidity of the estate.
Executor selection: The administration of an estate involves various Acts and is a complex procedure. It is advisable to appoint a competent person to be your executor. One may appoint family members who may also be named in the will as heirs or legatees to be the executor. The family member appointed need not know how to administer an estate but may engage the services of an expert to assist with the administration.
Heirs and legatees: It is essential that the will correctly records details of the heirs and legatees in a practical and simple way, so that it avoids confusion and conflict that delay the administration and often leads to litigation. Decide who you wish to inherit from your estate and what you wish them to inherit (the legatees). This can include family, friends, charities, or other organisations. The balance of your estate will devolve upon your heirs, who will inherit whatever is left after the payment of liabilities, including SARS, and the payment of any legacies.
Clarity in distribution: The will should record your intentions in simple terms. This ensures clarity and avoids confusion which leads to conflict and disputes.
Regular updates: Keep your will accessible and up to date. The will is a dynamic document and should be drawn with sufficient clarity to provide for the contingencies that can and will occur from the date of drafting of the will to the date of your death. Review your will periodically, especially when life events like divorce, childbirth, or asset changes occur. Always revoke previous wills to avoid any confusion and potential changes to inheritances.
Safe custody of wills: Wills should be stored in safe custody but be accessible to the family after one’s death. If they do not know the whereabouts of the will, your estate will then devolve in terms of intestate succession.
Avoid common mistakes that can invalidate your will
Basic requirements: Ensure the will is in writing, signed by the testator on each page and at the end of the will, dated, and witnessed by two competent witnesses. Digital signatures are not legally accepted.
Impartial witnesses: Choose witnesses 14 years and older who are competent, being able to give evidence in a court of law. Witnesses who are beneficiaries are precluded from inheriting, but this does not invalidate the will.
Appropriate executor: While any competent adult can be an executor, it's preferable to select someone knowledgeable in the law of deceased estates to expedite the process. A family member may seem a logical choice, but without knowledge of the process, winding up of the estate becomes time consuming, and delays are inevitable.
Clear beneficiary and asset identification: Clearly specify beneficiaries with full names, ID numbers, and their relationship to you. This prevents potential disputes or confusion. Nominate parties to be beneficiaries and provide for alternatives in the event of any beneficiary predeceasing.
Precise asset description: Describe assets, both movable and immovable, with reference to title deeds, account numbers, and locations where assets are specifically bequeathed. One’s assets change over time with the sale or acquisition of assets after the will is drafted, and for this reason, the will should include the appointment of heirs who will receive the residue of the estate after the payment of liabilities and legacies.
Foreign assets: If your estate includes local and foreign assets. It is suggested that wills be drawn in each jurisdiction where the foreign assets are located. One can have multiple wills. These must be drawn by experts to ensure that they are not inconsistent or revoke earlier wills.
Consider factors that can affect your will's enforceability
Marital regime: The will can only bequeath what is owned by the deceased at date of death. The matrimonial regime, i.e. in community of property or out of community of property with or without the accrual system, will determine ownership of the assets of the marriage. If married in community of property, the surviving spouse owns an undivided half share of the community estate, which cannot be dealt with by the first dying’s will. If married out of community with the accrual, this will result in a increase or reduction of assets which must be factored into calculating each parties estate and amount available for distribution.
Dependants: Dependants and the surviving spouses have a legal claim and right to maintenance, which is paid in preference to the legatees and heirs. Neglecting these claims will lead to legal challenges and alterations in asset distribution.
Ownership and use of assets: One should be sensitive to the expectations of beneficiaries and giving effect to division of the estate and the practicalities of the beneficiaries co-owning assets.
Liquidity and tax planning: It is essential that there is sufficient cash to cover the expenses and cash bequests. In the event of there being insufficient cash, the executor will be compelled to sell assets, which may not be in the interests of the beneficiaries or the intention of the testator. Proper estate planning and the advice of an expert in the drawing of the will can avoid this problem.
Caring for minor children: Designate a competent guardian who should agree to care for the minor children. If a guardian is not named, it can cause delays and may even result in a High Court application. Consider establishing a trust for minor beneficiaries. The Act directs that cash due to a minor beneficiary must be paid to the Guardians Fund for administration until the minor is of age. It is preferable to create a will trust that allows for family to administer the funds of a minor child rather than an unknown government official.
Appointment of trustees: The advantage of creating a will trust to care for beneficiaries who lack legal capacity, such as minors and mentally incapacitated persons, avoids the time and expense of a High Court application to appoint a curatorbonis to attend to this matter. Trustees need to be nominated in the will as well as their rights and duties. It is suggested that a member of family be appointed together with a trust expert, as the administration of a trust involves complex legal principles and requires expert advice and knowledge.
Recognise the value of professional expertise when drafting complex wills
Consult an attorney: Seek legal advice when drafting your will. An attorney can guide you through the legal requirements of drawing a valid will, ensuring the validity of the will and that your wishes and intentions are correctly recorded and capable of being executed in a proper and practical manner. Alternatively, you can seek help from expert advisers including accountants, banks, or trust companies to ensure a carefully drafted and legally sound will.
In summary, a will is a very important document that must meet the strict legal requirements and failing this will not be accepted by the Master. The will must also comply with various practical factors to ensure your wishes can be carried out in a fair and practical manner.
In conclusion, I would like to quote Arnold “A properly drawn will should leave a legacy of love.”
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