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25 steps for drafting a sure-fire will

How to ensure your will fully and accurately expresses your wishes.

If you’re in the process of having your will drafted or are busy updating your will, you’ll want to ensure that your will is accurate, precise and not open to interpretation. Besides ensuring that your will is written in clear and concise language, consider the following when preparing a will that fully and accurately expresses your wishes.

1. Write or type out your own will

Be sure that the person who writes or types out your will does not stand to benefit from it in any way. If an heir or beneficiary helps to write out or type out your will, disgruntled family members can use this as grounds to contest the will.

2. Keep a copy of your will where it can be found

Not being able to find a copy of your will can cause untold stress for your loved ones. You do not need to let your loved ones know or see the contents of your will while you are still living, but it is important to let them know that you have a will in place and where it can be found. You may wish to keep a hard copy in a locked filing cabinet or keep an electronic copy on your computer. Either way, give your loved ones peace of mind that if tragedy strikes they can access your last wishes easily.

3. Have the original stored in safe-keeping

Ideally, the original of your will should be held in a fire-proof safe, preferably held by your nominated executor or fiduciary company.

4. Choose your witnesses carefully

When choosing people to witness your will, be sure to avoid selecting anyone who stands to benefit in any way from your will. As such, do not let any beneficiaries, heirs or legatees sign as witnesses, nor your executor, guardian or trustees.

5. Sign your will in the presence of your witnesses

For your will to be valid and to avoid contestation, ensure that you sign your will in the presence of your witnesses and that you, in turn, watch them witness your signature. The validity of your will can be contested if you and your witnesses do not sign in front of each other.

6. Don’t leave spaces

Avoid leaving large blank spaces between paragraphs or between the last paragraph and your signature as this can give fraudsters the opportunity to insert wording or inadvertently alter your will after you have signed.

7. Revoke all previous wills

If you have drafted wills in the past, be sure to include what is referred to as a ‘revocation clause’ which effectively serves to nullify all previous wills that you have drafted. Ideally, destroy all copies of any previously drafted wills. This will give your loved ones peace of mind that your will is the latest and most up-to-date expression of your last wishes.

8. Date your will

While dating your will is not a legal requirement, it is highly advisable that you do so. If you have previous wills in existence which you now wish to replace, not dating your will can cause confusion as to which is the latest version of your will.

9. Include full names and ID numbers of all heirs and beneficiaries

When making a bequest or naming an heir, be sure to include their full name, identification number and their relationship to you to avoid problems identifying the intended beneficiaries. Many families use common family names which results in multiple members of one extended family having the same first name, middle names and surname, which can result in unnecessary confusion.

10. Sign your will on every page

It is not sufficient to sign your will on the last page. Ensure that you and your two witnesses sign at the bottom of every page. Failure to do so can result in the contents of the unsigned page being challenged.

11. Deal with the residue of your estate

Do not forget to include a clause in your will which deals with the residue of your estate. Also known as the ‘left-overs clause’, the clause stipulates what should happen with the residue of your estate after providing for legacies. If you fail to deal with the residue of your estate, you will effectively die partly intestate and the residue of your estate will be distributed amongst your intestate heirs.

12. Set up a testamentary trust for your minor children

The most effective way to protect assets intended for your minor children is to set up a testamentary trust in your will. By doing so, any assets bequeathed to your minor children will be housed and administered by the trustees you have nominated until your children reach a pre-determined age.

13. Update your will after a divorce

If you’ve recently been divorced, be sure to update your will accordingly because, if your ex-spouse is named as a beneficiary in your will, it will be assumed that you intended for them to inherit. In terms of Section 2B of the Wills Act, if you die within three months of your divorce, your ex-spouse will be excluded from inheriting in terms of your will. After three months, it will be assumed that you intended for your ex-spouse to inherit.

14. Have a separate will for your foreign assets

Be sure to know whether you require a foreign will for your offshore assets. Generally speaking, if you own immovable property or have shares in a foreign business, you will require a separate will for these assets to avoid delays in the winding-up process of your estate.

15. Don’t include provisions that are unlawful, immoral or impossible to fulfil

Do not include any clauses which are illegal, against public policy or impossible to fulfil. For instance, bequeathing assets to your child on the condition that he divorces his wife is immoral and against public policy, and can result in that portion of your will being declared invalid.

16. Make provision for your surviving spouse’s accrual claim

When you die, your surviving spouse will have a claim against your estate for their share of the accrual to the extent that your estate is greater than theirs. If you intend to bequeath your share of jointly-owned assets to a third-party, do not forget the accrual calculation when determining your estate liquidity.

17. Use clear and unambiguous language

Make sure that you use clear and unambiguous language in your will. For example, a sentence that reads ‘I leave the residue of my estate to my family’ is unclear because the term ‘family’ is vague and can leave the will open to interpretation. ‘Family’ is a broad term that could mean one’s immediate family, extended family or financial dependants.

18. Use the appropriate legal terms

Particularly if you’re drafting your own will, ensure that you use the correct legal terms in the relevant context. Usufruct, usus and habitatio, for instance, are all different forms of personal servitudes and have different legal consequences, so be sure to use terms that accurately reflect your intentions.

19. Provide for simultaneous death

In terms of our law, a person cannot succeed as an heir or legatee unless he survives the deceased person, but this can create confusion where a married couple lose their lives in the same accident or tragedy and where it is difficult to establish the order of death. To avoid confusion, it is advisable to include a ‘simultaneous’ death clause in your will.

20. Appoint a guardian for your minor children

If you have minor children, be sure to appoint a guardian for your children. If you do not appoint a guardian and there is no natural guardian for your children in the event of your death, the Master will appoint a guardian for your children, which is not ideal.

21. Appoint a substitute guardian

When nominating a guardian for your minor children, consider nominating a substitute guardian in the event that your primary guardian cannot fulfil the position when the time arises.

22. Make provision for your financial dependants

If you have minor children, keep in mind that you have a duty to support them financially and, if you don’t make adequate financial provision for them in your will, they can bring an application for the provision of maintenance from your estate. Similarly, your surviving spouse can claim maintenance from your estate in terms of the Maintenance of Surviving Spouses Act.

23. Align your beneficiary nominations with your will

To avoid confusions amongst your heirs, ensure that the beneficiary nomination on your life policies aligns with the wording of your will. Generally speaking, the insurance company will pay out the proceeds of the life policy directly to the nominated beneficiary, but it helps to know that your will reflects your intentions and does not contradict what you have indicated on your policy documentation.

24. Bequeath percentages and not amounts

Remember, the value of your assets can fluctuate over time and it is, therefore, advisable to bequeath percentages rather than rand amounts. For instance, you may have an investment worth R2 million that you bequeath to your son and an apartment worth R2 million that you bequeath to your daughter, which may seem equitable at the time of drafting your will. But, it is possible that the property loses value over time while your investment grows exponentially and that, at the time of your death, these two assets have quite disparate values which in turn can lead to animosity. To provide equally for your son and daughter it would make better sense to bequeath them each 50% of your estate.

25. Be careful when making amendments to your will

If you make any changes to your will, be sure to sign as close as possible to the amendment, and that two witnesses attest to your changes. They do not need to be the same witnesses that originally signed your will. Amendments can include a deletion, addition or alteration of a clause, or an interlineation where additional text is added between sentences.

ADVISOR PROFILE

Eric Jordaan

Crue Invest (Pty) Ltd

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COMMENTS   1

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Thanks for this very useful and well-explained article.

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