It's very easy to draw up a will and it's quite easy to make sure it's validly signed according to legal requirements. What is not so easy is to make sure it is practical.
Actually, it is the wrong way round to start with the drafting of the will. A will is the end product of an estate plan that is part of your financial planning. Everything must form a logical unit, otherwise you only create problems.
So where do you start? You start by taking stock of what you have, what you still want to accumulate, what you want to do with it during your life and what you want to happen to it when you die one day. So, what are your life goals, how do you achieve and finance them and what happens to your stuff when you die.
Then you can sit down and ask yourself: if I die now, who should get what from what I have already collected. Only then can you start thinking about how your will should read. This question should be asked at least every two years, but earlier if there are major changes in your life, e.g. a marriage, the birth of a child or grandchild, a death in your family, the purchase of a house, etc.
In South Africa, in theory, we have a high degree of freedom, known as freedom of testation, to bequeath our things in a will as we see fit. In practice there are limitations.
It doesn't help that you bequeath your things as you wish, but there is too little cash in your estate to pay liabilities (including taxes) and costs. Then the executor of the estate has only one of two choices, either the heirs have to pay cash into the estate to inherit the car or the house or whatever, or that inheritance has to be sold to generate enough cash to cover the liabilities and costs.
Your marital regime plays a big role. If you are married in community of property, only an undivided half of each asset is yours and you cannot unilaterally dispose of the other half. If you are married out of community of property including the accrual, the accrual claim is settled before the division is made according to the will.
Married couples (and cohabitants) should bear in mind that the surviving spouse may have a claim against the deceased's estate under the Maintenance of Surviving Spouses Act in circumstances where such a surviving spouse has been left with insufficient income and care.
Your retirement provision saved in a pension, provident or retirement annuity fund is distributed by the trustees of the retirement fund according to provisions in the Pension Funds Act. You can nominate beneficiaries, but the trustees are not bound by your nominations.
If you have named beneficiaries for the proceeds of your life policies, it does not help to bequeath those policies' proceeds in your will. The insurer will pay out to the named beneficiary.
If you or your parents or grandparents have set up a trust and there is property (house, car, investments) in the trust, you usually cannot dispose of it in your will even if you are a beneficiary of the trust.
About the things you can dispose of, your will is all that is left to speak for you when you are no longer around. That is why it is so important that your will is logically and correctly worded without contradictory provisions. A comma in the wrong place can mean trouble. The court may not look for your intention outside the words of your will. Words have meaning and the wrong words in the wrong places in a will can misrepresent and undermine your intention.
It is good to nominate an executor for your estate in your will, otherwise the Master of the High Court must identify one after consultation with stakeholders. It takes time and time is money. Your nominated executor must be appointed by the Master, unless the person is unable to act as executor.
Estate planning and drafting a will is not the place to look for the cheapest option. Get the services of an expert and make peace with the fact that you will have to pay for it.
Judge of Appeal Leach said ten or so years ago: " It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign."
Judge of Appeal Weiner recently quoted Ambrose Pierce: “Death is not the end. There remains the litigation over the estate."
Make sure your will is not one that will survive a court case, but rather one that will never have to go to court.
How to validly sign a will:
- In South Africa, wills must be signed on paper. The will can be handwritten or printed, preferably the latter.
- The testator (the person whose will this is) must sign each page at the bottom. On the last page, the signature should be directly below the end of the text.
- The testator must sign in the presence of two witnesses who must be over fourteen years of age and able to testify in court.
- The witnesses must sign at the end of the document (preferably also every page).
- The witnesses must be present both when the testator signs and when they sign the will.
- Although this does not invalidate the will, witnesses to the will are disqualified from inheriting and from being appointed as executor, trustee or guardian in terms of the will.
- If the testator cannot make a signature, for example due to a disability, illness or illiteracy, get expert help. The testator can then make a mark or someone else can sign on behalf of the testator, but this must be confirmed and certified by a commissioner of oaths.
Article By Louis van Vuren, CEO, The Fiduciary Institute of Southern Africa (FISA)