A will is a must have document. But it has to be valid and enforceable for the estate to be wound up efficiently and according to the wishes of the deceased. A poorly drafted will, such as one that is incorrectly witnessed or names an inappropriate executor, could see the estate being dealt with according to the laws of intestate succession. This is much the same as having no will at all as it can leave intended beneficiaries without any inheritance.
We spoke to Barry Shrosbree, Senior Manager at 1Life, about how to draft a valid, enforceable will, and how to avoid the common mistakes that can invalidate a will.
Get the basics right
The basic requirements for a valid will are that it must be in writing, signed and dated in person and witnessed. A will must also name an executor. Meeting these basic requirements may appear relatively simple, but many wills are invalidated because the specific requirements of the basics are not met. For example:
The will is not signed and dated in person and initialled on each page
Digital signatures are not acceptable in court (yet) so any will that is not signed in ink in person is not considered a valid will.
Witnesses are beneficiaries
Witnesses must be over the age of 14 and competent. For example, they cannot be seriously ill, taking medication or any substance that hampers their ability to understand, or under the influence of substances such as drugs or alcohol. Witnesses cannot, in any way, stand to benefit from the will. A spouse, executor, or any potential beneficiary does not qualify as a witness. Again, these witnesses must sign in person in ink on the original will.
An inappropriate executor is named
Any competent adult can be named as an executor. However, it is preferable for the executor to have knowledge of the law and/or deceased estates so they can effectively and efficiently carry out their duties. A family member may seem a logical choice, but without knowledge of the process winding up an estate becomes time consuming and delays are inevitable.
Get these basics wrong and the will may be invalidated, and the laws of intestate succession applied, or the estate may take months and possibly years to wind up. This can not only leave family members and beneficiaries without funds, but also without an inheritance.
Did you know? Not having a will isn’t unique to South Africa! As many as 68% of Americans don’t have a will!
Be clear on the details
In addition to getting the basics right, wills need to be clear and specific on the details so the will is enforceable. These are some of the watchpoints advisers and clients must keep in mind.
Beneficiaries and assets must be clearly named
A will’s purpose is to distribute assets to beneficiaries quickly and efficiently. This cannot happen if assets and beneficiaries are not clearly identified.
Beneficiaries must be named in full, ID numbers given and the relationship to the testator specified
This avoids a situation where a John Brown is named as a beneficiary and a long-lost cousin called John Brown claims the inheritance over the son named John Brown. Alternate beneficiaries should be named who will inherit if the named beneficiary has passed on.
Assets must be specified with a catch-all clause included
Assets, including moveable, immovable and digital assets such as cryptocurrency, must be named according to title deeds, account numbers and location. Spending time getting this right when drafting the will saves time, as well as avoiding potential problems when winding up an estate. Assets change over time, and it is possible to forget assets when drawing up a will. This can be dealt by including a clause that leaves the “residual of the estate” to a named beneficiary or beneficiaries.
Keep in mind that international assets may need to be dealt with in an international will, especially if they are immovable such as property.
The will should be easy to enforce
It is easy to forget practical matters when drafting a will, including how spouses are married and who enjoys use of assets. The following must be taken into account when drafting a will as they can easily render a clause, or the entire will, unenforceable.
The marital regime
This may give a spouse preferential right to inherit before anyone else. For example, if a couple is married in community of property or out of community of property with the accrual system, the spouse has a right to ownership of certain assets if they were not already a joint owner with their spouse. These assets cannot, legally, be left to another beneficiary.
Dependants have a right to claim from a deceased estate. Excluding them will lead to challenges and possible changes to the distribution of the estate’s assets.
Ownership and use of assets
Assets owned by the deceased will be distributed according to their wishes, but ownership and use of assets can create conflicts and practical problems. For example, an asset may be left jointly to beneficiaries, but if one beneficiary is enjoying use of that asset, such as a family home or car, that the asset may have to be sold, leaving a dependant without a car or home.
Liquidity and tax planning
Most estates need some form of liquidity or cash to pay for expenses, ranging from funeral expenses to medical bills, advertising and setting up estate accounts, as well as tax, if applicable. Not planning for liquidity can cause complications and delays and may end up reducing the net value of the estate if assets have to be sold to pay expenses. Tax planning is also critical, especially if the estate is valued at over R3.5 million.
Providing and caring for minor children
No parent wants to leave their children without funds or care, but poorly drafted wills can easily do so. This can be avoided by:
Naming a competent guardian
A will must name a competent person as guardian who must agree to care for the children. If a guardian is not named, the High Court appoints a guardian, who may not be the first or ideal choice.
Setting up a trust for inheritances to minors
Children under the age of 18 cannot legally inherit in South Africa, but assets can be left to a trust where the children are named as beneficiaries who can inherit at age 18 or a later age. When assets are left to minor children without any further provision, assets are sold and the funds deposited with the Guardian’s Fund at the Masters Office. This isn’t ideal as only certain expenses up to certain amounts can be paid.
Expert advice when drafting a will can help avoid situations where children have limited access to funds or are cared for by an unsuitable relative or guardian. Experts can also assist with any special needs trusts for special needs children or adult dependants.
Maintenance and storage issues
A will must be accessible, retrievable and updated. Divorce, the birth of children and change in assets often requires a will to be updated or a new will drafted. Too much time to locate a will, or not updating a will that names an ex-spouse as beneficiary causes delays in winding up many an estate.
Don’t forget to: Revoke previous wills. Without revoking a previous will, or wills, there may be confusion as to which applies. This will add time, and cause confusion as well as possible changes to inheritances.
The value of an expert
Wills are rarely simple, and best drafted with the help of an expert. There is no substitute for an experienced professional who knows what to include, what legal terms should be used where and can ensure the will is practical and assets distributed as intended.
Experts can also assist with matters such as a Living Will and can advise family members on how to deal with other practical issues such as how to plan for closing social media accounts and dealing with digital footprints when the time comes.
Ensure the beneficiaries benefit
Poorly drafted wills make it more costly to wind up estates, take more time, and ultimately can leave beneficiaries out of pocket. Avoiding mistakes in wills by using an expert’s services is a more efficient and effective way to ensure an estate is dealt with and the deceased’s wishes followed.