Liberty Legal Marketing Specialist, Geraldine Macpherson shares lessons learnt about what to include and what to avoid when writing your Will
Don’t rule from the grave
Be careful about being too prescriptive in your Will and trying to influence control after you have passed away. This usually leads to court cases, delaying the winding up of your estate and making the lawyers rich.
There was a case in Pretoria recently where a father entered into a hand-written Will in terms of which he bequeathed his entire estate to his two daughters and nothing to his sons because they smoked and he had threatened to disinherit them unless they stopped. One of his sons contested the Will as it was just handwritten, signed by the late father and witnessed by his secretary. The court upheld the Will as valid, but it caused delays, so you need to think very carefully before disinheriting your child or spouse.
Also avoid using your Will as a tool to control your descendants while you are still alive. There was a very successful and wealthy businesswoman who kept updating her Will every time a family member fell out of favour. Although she had her “favourite” nephew to whom she left the bulk of her estate in a previous Will, just before she died she changed her mind and decided to be fair and bequeath her estate equally among her descendants. The nephew contested the final Will and lost. This simply caused delays, unnecessary costs and resulted in animosity among the family members. This is not the way you want to be remembered.
Your Will embodies your legacy, so keep it simple and practical
Allow it to benefit those you wish it to benefit, but in a manner of their choosing. If there are real concerns as to their ability to use the inheritance wisely, for example in the case where a child may be a drug addict, then consider bequeathing the assets to a testamentary trust, where that person is a trust beneficiary and can enjoy an income and perhaps access to capital where appropriate, but will not be able to squander the wealth.
Do protect your children’s inheritance
Always include provision for a testamentary trust if you have minor children. This is a trust that is imbedded in the Will. Also, always include the issue of guardianship for minor children.
If you have adult beneficiaries, you can protect their inheritance from a divorce settlement or insolvency. For example, you can stipulate that if your child marries, the inheritance is not to form part of their estate. You can also protect their inheritance if their estate becomes insolvent by including a clause to the effect that should a beneficiary be insolvent, their benefit will not be paid to them, but to their descendants or to their siblings.
Don’t include clauses that are illegal
A very basic principle is that only you can bequeath your assets. You can’t outsource this to someone else by stipulating, for example, that you leave your entire estate to one child who must then decide who gets what, or leave it to the executor’s discretion. You also cannot contravene the Bill of Rights in your Will. For example, you cannot stipulate that you bequeath your estate to your child provided she divorces her husband, or bequeath your estate to your grandson provided he never marries across race or gender. You also cannot bequeath to your pets directly, although you can bequeath to an institution with the instruction for that institution to care for your pets.
Don’t let beneficiaries witness the Will
No one who benefits financially from the estate should witness the Will. This includes the beneficiaries, the executor, the trustee (who can charge a fee) or the spouse of any of these individuals. If they do witness the Will, then an application will have to be made to the High Court (at the expense of the estate) to validate the Will and essentially the bequest. This will result in unnecessary expense and a delay in winding up the estate.
Do revoke previous Wills
When you write up your Will, you must include a statement that you revoke all previous Wills. Confusion as to your final Will could have legal consequences. Should the Wills be fairly similar and not contradictory or ambiguous, they will all be given effect to. But if there is any contradiction, then none of them can be given effect to with regards to that specific asset and the asset/s will devolve by means of intestate succession. This means it will be distributed as if you have not included them in any Will. Also bear in mind that if you have an offshore Will, by revoking all previous Wills you are also revoking your offshore Will, which is probably not your intention. You do need to proceed with care and caution and get advice about the correct wording to ensure your offshore Will remains valid.
Do review your Will as often as possible
You must review your Will regularly. If you were to get married, but not amend your Will to change from your parents as beneficiaries, for example, your parents will in fact inherit, and not your spouse. Your spouse will only be entitled to claim maintenance in terms of the Maintenance of Surviving Spouses Act. And if you were just co-habiting (even if for many years), your life partner, in the absence of a Will, would have virtually no rights at all, as they would not be recognised as a spouse. If you get divorced, you have three months to amend your Will and if you don’t, and die after three months, then the Will in which you left everything to your (now) ex will be valid. If you die within the three-month period, then your ex-spouse will not inherit, unless you had entered into a new Will after divorce. In this case your ex-spouse will be treated as if he or she had pre-deceased you, so any clause you have in your Will regarding simultaneous death will kick in, or if no alternative beneficiaries are mentioned in your Will, your estate will devolve by means of intestate succession.
Share this article:
Linked In | Facebook | Twitter | Email |
