A well-drafted Will should make the intentions of the testator clear and leave no room for discrepancies or uncertainty. The last thing any testator would want is to create confusion among their heirs, and the possibility of a contested Will.
When it comes to ensuring that your wealth is transferred to your heirs per your wishes, it is always advisable to seek the advice of an estate planning professional. Even a seemingly insignificant oversight can change the meaning of your Will entirely and lead to unintended consequences.
Here are some errors to avoid when preparing your Will:
Vague and unclear language
Vague language which makes it unclear what your intentions are can lead to discrepancies and confusion. For instance, a sentence that reads: “I leave all my assets to my family” is unclear and insufficient. Does the testator mean his immediate family or his immediate and extended family? Does it refer to the children from his current marriage only, or does it include children born from a previous marriage or relationship? The wording in your Will needs to be clear, specific and concise leaving no room for misinterpretation or contestation.
Witnesses to the Will
A person who stands to benefit from your Will should not sign as a witness to your Will as they stand to be disqualified from inheriting. A witness must be someone who does not stand to inherit from your estate, is 14 years or older, and of sound mind. They must also be competent to the extent that they do not need to understand the contents of your Will – but rather, they need to confirm that the Will was signed in the presence of the testator and two witnesses.
Not dating your Will
Failing to date your Will can cause problems at death, especially if you have signed a previous Will which is now being replaced. This can lead to confusion and uncertainty as to which is your latest Will.
Not signing on each page
The testator is required to sign in full at the bottom of each page of the Will while both witnesses need to sign at the bottom of the last page. It is, however, recommended that both witnesses sign at the bottom of each page. Failure to sign the Will correctly can result in the document not complying with the terms of the Wills Act and can cause the document to be declared invalid.
Failure to revoke preceding Wills
A common mistake made by testators is that they do not specifically revoke all previous Wills. This can cause problems and delays if they have other previously drafted Wills with different people or in different places.
Misuse of legal terms
The misuse of legal terms can lead to consequences that you did not foresee. For instance, using the terms usufruct, usus and habitatio – which are all different forms of personal servitudes – in the incorrect context can bestow wholly different rights on your heir to what you intended.
Not dealing with the residue of your estate
Many testators focus the attention of their Wills on bequeathing specific assets to specific heirs and forget to include a clause dealing with the residue of their estate. After providing for legacies, you can bequeath the remainder of your estate to your nominated heirs. However, if you do not stipulate what should happen with the residue of your estate, it will be distributed according to the rules of intestate succession.
Not updating your Will after divorce
If you do not update your Will within three months of getting divorced and your ex-spouse is a named 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, unless a contrary intention can be shown from the wording of the Will.
Getting a beneficiary to write out your Will
The person who writes or types out your Will should not be a named beneficiary in your Will as this can disqualify them from inheriting. Make sure that the person drafting your Will is not a beneficiary, heir or legatee.
Not setting up a testamentary trust
Very often, testators bequeath assets to their minor children but do not make provision for a testamentary trust in terms of their Will. In the absence of a testamentary trust, all assets bequeathed to minor children will be housed in the Guardian’s Fund which is run by the state. The assets will be administered – and earn very little interest – until the child reaches age 18. A testamentary trust, which only comes into existence in the event of your death, is designed to house the assets left to your minor children until they are old enough to look after their financial affairs. Bear in mind that your Will should also specify what the trust’s duties will be, as well as who the income and capital beneficiaries should be.
Failing to appoint a Guardian
If you do not appoint a guardian for your minor children in terms of your Will, the Master will appoint someone on your behalf – and that person may not be the person you would have chosen. It can also cause unnecessary conflict between grandparents, siblings and friends who may have differing opinions as to who would be best suited for the job.
Not updating Will after disposal of property
If your Will bequeaths specific items or property to an heir or legatee, then you will need to amend your Will if and when that item or property is sold.
Not updating beneficiaries on a life policy
It is important to regularly review the beneficiaries nominated on your life policies, especially after events such as a death, divorce or birth of a child. Bear in mind that where a beneficiary is nominated on your life policy, the money will be paid directly to that beneficiary and will not form part of your estate.
Not clearly identifying beneficiaries or heirs
Your Will must specifically identify an heir or beneficiary, bearing in mind that there could be several people in the family with the same name. To ensure that the correct person inherits, be sure to include their full name, ID number as well as their relationship to you.
Not providing for your dependents
Although you have freedom of testation, there are certain situations where this freedom is limited. In the first instance, your Will can be contested by your minor children for the provision of maintenance if you do not make adequate provision for them. Secondly, your surviving spouse may have a claim for maintenance in terms of the Maintenance of Surviving Spouses Act if you do not provide for her financially. Finally, in respect of marriages with the accrual, the surviving spouse has a claim for her share of the accrual in terms of the Matrimonial Property Act.
Not telling your loved ones where you Will is
It is essential to let your loved ones know where you Will is so that they can easily locate it in the event of death. The winding-up of your estate may be substantially delayed or adversely affected if your Will cannot be found.
Not having a foreign will for your worldwide assets
If you own foreign assets, you must determine whether you need a foreign Will or not. Generally, if you own movable property overseas, this can be dealt with in terms of your South African Will. However, if you own immovable property – depending on where it is located – you may need a foreign Will to govern the distribution thereof.
Not determining the liquidity in your estate
It is important to do your liquidity calculations when drafting your Will to ensure that there are enough funds in your estate to settle your debt and estate costs without compromising the inheritance of your intended heirs. Bear in mind that the proceeds of life policies left to named beneficiaries do not fall into your estate. If there is insufficient liquidity in your estate at your death, the executor may be forced to sell assets to cover costs.
Not writing a Living Will
While drafting your Will, consider writing a Living Will or Advance Healthcare Directive. This document is designed to guide your loved ones and medical practitioners on how you would prefer to be treated medically if you cannot speak for yourself.