As one’s personal and financial circumstances change over time, one important document that often tends to get overlooked is one’s will. However, as one of the most important documents a person will ever sign, a will deserves careful and regular attention, especially when it comes to reviewing its contents. While you might be confident that, at the time of drafting it, that your will perfectly expressed your wishes, keep in mind that relationships, family dynamics and objectives change over time and your will may require a review. Here are ten reasons that may pre-empt a review of this all-important document.
1. Your personal circumstances
Any change in your personal circumstances can necessitate a review of your will, specifically a change to your marital status, or where there have been additions to your immediate family such as the birth or adoption of a child or grandchild. Naturally, if you have recently been divorced, updating your will would be a priority. Remember, that Section 2B of the Wills Act effectively provides a person with a period of three months post-divorce in which to update their will. If you have been divorced for a period of less than three months and your will drafted before your divorce makes provision for your former spouse, it will be assumed that your ex-spouse had died before the date of your divorce – and, as such, they will not stand to benefit from your will. However, if you have not amended your will within the three-month period following your divorce, it will be assumed that you intended to provide for your former spouse.
2. Your minor child’s guardian
Friends and relationships change over time, and it’s important to check that the guardians you originally nominated for your minor children are still the people you would choose to raise them should you no longer be around.
As a word of caution, if you have nominated your parents, or your spouse’s parents, as guardians for your minor children, it is important to assess their current health and whether they are realistically still physically capable to take care of your children should you pass away. As your parents age, you may find that you are less comfortable in their ability to be guardians to your children. One option is to nominate an alternate guardian in terms of your will to provide for the eventuality that your parents are not capable of fulfilling the role.
Another important factor is to assess where your nominated guardian lives in relation to you and your family, particularly if your guardian has moved cities or emigrated from South Africa. In the event of your passing, your guardian’s role is to assume custody of your children and to raise them until adulthood, so think carefully about the impact of your children having to relocate.
3. Your nominated trustees
Similarly, assess whether those that you appointed as trustees to your testamentary trust are still those that you trust implicitly to make decisions that are in the best interests of your minor children. You may want to nominate a different set of trustees or nominate alternate trustees in the event that one or more of them are not available when the time comes. Do not underestimate the important role that your trustees will play in managing and investing the trust assets and making decisions with regards to the care of your children, so consider ensuring that one of your trustees is an independent person with fiduciary experience.
4. Duration of your testamentary trust
Re-examine the terms of your testamentary trust, specifically when it comes to the duration of the trust and at what age your children should be when the trust terminates. As your children grow older, you will have a greater sense of their financial astuteness and fiscal responsibility, and this may influence your decision. If your children demonstrate maturity and you are comfortable that they will be able to manage their financial affairs, then you may wish to choose an age between 18 and 23. On the other hand, you may feel more comfortable ensuring that your children have more life experience before handing over the financial reins to them. From our experience, most parents feel comfortable setting up a testamentary trust to terminate when the youngest child reaches age 25.
5. Your executor
Double-check your executor nomination to ensure that the person or company you appointed is still the best person for the job. Check that the company appointed to be executor is still in existence, bearing in mind that companies (law firms, banks, investment houses, etc) merge, close down, or change names, and you don’t want to leave your loved ones in a position where they are struggling to identify the company or person you’ve nominated. If you’ve appointed a family member as executor, give thought to what extent family dynamics have changed since first nominating that person, and whether they are still appropriate to execute your will.
6. Your per stirpes clause
Per stirpes, or by representation, is a legal stipulation which requires that if a beneficiary dies before you, the beneficiary’s share of the inheritance will pass to their heirs. Essentially it means that each branch of the family will receive an equal share of an estate. For example, if you leave your estate to your son and daughter in equal shares and your son pre-deceases you, your son’s share of your estate will pass to his children. However, as relationships change over time, this may no longer be your intention and could necessitate a revision of your will.
7. Your special bequests
If you’ve made special bequests in terms of your will, it may be worth reviewing them to determine if they remain aligned with your intention. This is particularly the case where you have bequeathed a fixed rand amount to a specific legatee which is now outdated in relation to your net worth as it currently stands. Further, make sure that your legatees are still alive, and that there aren’t any other people to whom you would like to make a special bequest.
8. Foreign assets
If you’ve acquired any foreign assets since drafting your will, this may necessitate a review of your will. Depending on the nature and jurisdiction of the foreign assets, it may be necessary to have a foreign will drafted. In such a case, you will need to amend your current will to ensure that it specifically states that it refers only to your South African assets.
9. The residue of your estate
Check that your will includes what is referred to as a ‘leftovers’ clause to deal adequately with the residue of your estate. After all debts have been settled, any bequests or legacies that you have stipulated in your will are paid out to the nominated heirs or legatees, following which the residue of your estate is distributed amongst your beneficiaries. However, if you have not specifically stipulated how you would like everything else remaining in your estate dealt with, the residue of your estate could be distributed in terms of the law of intestacy, meaning that you would effectively die partially intestate. If there is no such clause, it may be wise to re-draft your will so as to insert an appropriate clause to this effect.
10. The original of your will
In order for your will to be found valid, an original signed copy of the document must be located by your executor. If you only have a copy of your will and are unsure as to the location of the original, it may be advisable to redraft your will entirely. Ideally, ensure that you and your witnesses sign three originals of your will, and that each original is stored in a separate, safe location.