Dying intestate or without a valid will, causes a host of problems. The greatest of which is you cannot always be assured that the person that you want to receive your assets will do so. You also cannot confirm who will be responsible for your estate (i.e. executor) or what happens to the funds if a beneficiary is a minor. This together with numerous other considerations are dealt with in a professionally drafted will.
So why the discussion on how many wills do I need?
The use of multiple wills often arises when people also own assets in countries other than South Africa. The reason they own these assets in other countries vary. Some purchase assets using their various South African Reserve Bank allowances and some may have inherited assets from non-resident family members. Others may have worked in foreign jurisdictions for a time and some may have accumulated assets before permanently moving to South Africa.
So why can my one professionally drafted will not be used for my worldwide assets?
Short answer – sometimes it can be used! However, there are various aspects which need to be taken into consideration:
- The person that you appoint as executor in South Africa will not have jurisdiction or rights to deal with the assets in the other countries. This means that an agent will need to be appointed in that country by your South African executor. The appointment of this agent can be time-consuming given that an application needs to be made to the Master of The High Court for court certified copies of your will (which is lodged with the Master of The High Court) and various other affidavits. The original documents are then forwarded to the agent who in turn then applies for appointment to act in that country. This process is often referred to as “probate”.
- Another key driver to consider is the jurisdiction in which the assets are held – some countries have forced heirship rules. Forced heirship rules legally prescribe how the assets must be treated on death. One does not always have the freedom of choice here – despite what the will may state. It is impossible to list each country and their rulings and it would, therefore, be of great benefit to investigate how your assets need to be dealt with when you pass away. In short, if you have assets in multiple jurisdictions directly in your name, professional advice is a must.
- A very important point to note is that if there are multi-jurisdiction wills, their jurisdiction clauses must work in conjunction with one another. In other words, if there are conflicting clauses in the will, this may result in an absolute nightmare. Wills must also be clearly identifiable for the jurisdiction in which they are intended and not revoke each other.
Another question we are often asked is “can my spouse/ significant other and I draw up one will?”
When I get this question, I am reminded of a case I had as a deceased estate administrator some years ago. A very annoyed client asked why I insisted on referring to her marriage as having been “in community of property” when clearly she and her husband had separate wills!
Whilst there are a host of issues that can be raised here, we will focus on the issue of the last will and testament. The drafting of a will has no bearing on your marital status. A couple married in community of property/out of community of property and even those married with the accrual system can have separate or joint wills. It is not even necessary for a couple to be married at all and in fact, you don’t need to be a couple (this could, however, be problematic).
One of the problems with joint wills is that once the first spouse/party dies – the original will is then lodged with the Master of The High Court. When the second spouse/party dies (assuming that they have not drafted a later valid will of their own) the executor has to then apply to the Master of The High Court for a court-certified copy of the will – this is then lodged with the estate reporting documents. Experience has taught us that this takes time and can delay the issuing of the official appointment of the executor. This can have disastrous consequences if matters need to be dealt with urgently in the estate.
If you are concerned that your rights in terms of your marital regime are not protected (example couple married in community of property) – don’t be! There is clear legislation protecting spouses and children. Also, your antenuptial contract is an enforceable agreement, so please make sure that you understand what this says.
In conclusion – a checklist of points to consider when drafting or reviewing your will:
- Where are all my assets located?
- Do I have a VALID will/wills?
- Do I review my will on a regular basis? Changes to tax laws and exchange control have a direct impact on multi-jurisdiction bequest and transferability of assets from SA citizens and taxpayers. Double estate duty problems may also arise – hence careful professional planning is very important here.
- If I do have multiple wills can they be clearly identified as to what jurisdiction they are intended and do not unintentionally revoke my other wills?
Your last will and testament, whether it be one or many, is part of your legacy and must, therefore, be given the attention it deserves. If not, the consequences could be disastrous.