By Wilma Bedford
Your will is probably one of the most important legal documents you will ever draw up; it stipulates where you want your assets to go, who receives guardianship of your dependants, what should happen to your debts and who you appoint as executor of your estate and last wishes.
Yet there are so many people without a will merely because they postpone compiling it or because they think they have no legacy.
Persons over 16 may draw up a will and persons over 18 should already have a will or asset document in place.
1) The first mistake is to not have a will.
If you die intestate – without a will – the Master of the High Court will appoint an executor to distribute the estate in accordance with the rules of intestate succession. If there aren’t any surviving family members and no blood relatives, the estate is paid into the Guardianship Fund of the Master of the High Court and should it not be claimed within 30 years, it will be declared forfeited to the state.
2) You appoint too many executors
You might want all your children or dependants to have a say in the administration of the estate. This usually leads to family feuds and conflict. An example of this is that when there is fixed property, for example a farm, in the estate, it will be argued as to whether the farm should remain in the family or be sold, because some of the executors are experiencing financial difficulties. The more executors there are, the fiercer the battle and the greater the conflict of interests that you did not foresee.
If you appoint two executors, who has the final say if they don’t agree? If you are going to appoint any executors, stick to an uneven number so that there will be a majority decision. Is the executor of your will competent enough to give due diligence to your last wishes? It will be advisable to appoint a lawyer who possesses specialised legal knowledge regarding the administrative process. You may still appoint an executor together with the lawyer.
3) You are vague about items with sentimental value
Items of sentimental value cause family arguments. If you know one of your beneficiaries would like something or should by rights inherit something, discuss it, give it ahead of time or specify it.
4) You have assets that you don’t nominate specifically
If you have come into a property or another asset that you don’t specify in your will, the asset or property will be considered intestate and distributed under the Intestate Succession Act. The same applies if you bequeath something to a person who has passed away and you haven’t nominated a substitute beneficiary; the rules of intestate succession will determine how the estate should be distributed.
5) You don’t revise your will.
Occurrences in life, such as divorce, marriage, birth of children, traumas and changes in prosperity require that you revise your will regularly.
6) You don’t contemplate the consequences of your bequest
To leave children money could empower them if they are mature enough to manage it to their advantage, but it can also be a burden if it entails tax obligations. Inheriting fixed property might be a burden if the beneficiary lives overseas or is not capable of maintaining the property financially. You intend making provision for the care of a minor or disabled dependant, but have you appointed a responsible and honest guardian to administer the funds and what does the administration and rendering of service entail for this person?
7) No-one knows where to find your will
Keep a signed will in a safe place and inform your loved ones where to find it. In this way you save them a lot of effort. Let persons close to you know at which lawyer’s firm the original document is being held.
8) You draw up your will yourself
This is a dangerous thing to do. Get professional advice. Pay your fee to a firm that specialises in estates and wills, especially if you have a complicated estate. This can save your beneficiaries a lot of effort and costs. To draw up a will that meets the requirements for it to be valid, requires expertise and legal knowledge, as well as knowledge of estate tax, capital gains tax and income tax. Don’t rely on general printed forms that are readily available nowadays, unless your estate is very simple. A lawyer who specialises in estate planning will be able to notice and diminish the opportunity for possible ambiguity, which might require interpretation by a court. He might also be able to find ways in which estate tax, payable to the state, could be decreased.
9) Your will does not meet legal requirements
Given that on average it takes nine months to finalise an estate, you should avoid mistakes in the document.
If your estate does not meet legal requirements, it could be found to be invalid and will then be administered in accordance with the Intestate Succession Act. A will should in the first instance be in writing. Our law does not acknowledge a verbal will as valid.
The person who draws up the will (testator) has to sign the will. The person who is the owner of the will, cannot authorise anyone else to sign the will on his/her behalf.
Witnesses who signed together with the testator, may not inherit from the testator. The witnesses must sign the will in the presence of the testator and in each other’s presence. The witnesses must sign their names in full. They may not use a symbol or initials. If the will is longer than one page, the person who drew up the will and the same witnesses must sign all the pages in full. If the Commissioner of Oaths certified a will signed with a symbol, the same Commissioner must also sign all the pages.
Your will may not contain anything that is illegal, immoral, “against public policy”, impossible to execute, or be so vague that it cannot be executed.
You can revoke your will wholly or partially, but you must include a clause in which you indicate that you revoke all previous wills. If you don’t do so, the original will will be valid. If you only change a section of your will, you can do so by drawing up another document that has to be signed, dated and signed by witnesses who aren’t family-related.
If you don’t have a will or one that is dated and no longer suited to your circumstances, it would be advisable to contact your lawyer.
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