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Preparing to draft your will: Some important considerations

While you may be tempted to go the DIY route because your affairs are what you consider ‘simple’, think twice before putting pen to paper.

Drafting a valid will can be considered the first step towards leaving a legacy for your loved ones and, while you may be tempted to go the DIY route because your affairs are what you consider ‘simple’, think twice before putting pen to paper.

Besides needing to meet the requirements of a valid will, you also need to consider other factors such as the nature of your marriage contract, your obligations in respect of financial support, your estate liquidity and the ongoing care of your minor children, amongst other important considerations.

Let’s unpack.

The requirements for a valid will

Before writing or typing out your will, certain legal requirements need to be met to ensure that your will is considered valid by the Master of the High Court. Besides being over the age of 16 and of sound mind, you need to ensure that your will is clearly typed or written out and that the person drafting your will does not stand to benefit from your estate. You should ensure that you sign your will in full on each page, avoiding the use of initials, and your will is clearly dated. Importantly, you will need to ensure that no one witnessing your will stands to benefit from your estate, including beneficiaries, legatees, trustees, guardians, or any other person named therein. Remember, your witnesses must be over the age of 14 and must also not stand to benefit from your estate.

The nature of your marriage contract

If you are married, the nature of your marriage contract will have bearing on how you can distribute your assets. If you are married in community of property, you and your spouse share a single, joint estate meaning that only half of the assets are yours to bequeath. If you intend bequeathing your share of the joint estate to your spouse, then no estate planning problems should arise. However, if you intend to bequeath your share of the joint estate to a third party, you will need to fully appreciate the consequences of doing so especially, for instance, if you and your spouse live in a jointly-owned home.

While the accrual system is considered to be a more equitable marital regime, it can make the estate planning process more complex, and it is important to appreciate how the accrual will work in the event of death to avoid unintended consequences. In the event of your death, the value of your respective estates will be determined for accrual purposes. If the value of your estate is greater than that of your surviving spouse, they will have a claim against your deceased estate for their share of the accrual. On the other hand, if the value of your estate is lesser than that of your surviving spouse, your deceased estate will have a claim against their estate for your share of the accrual. Once again, if you intend to bequeath your respective estates to each other in the event of death, no problems should arise. But, if you intend to bequeath assets to a third party (or third parties), it is important to understand how the accrual can impact your intentions.

The age of your children

The age of your children is a hugely important consideration when contemplating your will. If all your children are over the age of majority and have no specials needs or disabilities, then providing for them in terms of your will should be fairly straightforward. However, if you have minor children or children with mental or physical disabilities, then there are several factors to consider. Making provision for a guardian for your minor children in terms of your will should be paramount. When doing so, you may also want to consider nominating an alternative guardian in case the primary guardian is no longer available at the time of your death. Having said that, relationships with family and friends change over time and your guardian nomination is something that should be revisited regularly to ensure that the person you initially nominated is still appropriate.

Assets intended for minor children

If there are specific assets in your estate that you intend to bequeath to your minor children, it is important that you provide for this carefully in your will. Remember, in terms of our law, children under the age of 18 do not have contractual capacity and are not able to inherit directly. If you bequeath assets directly to your minor children, it is possible that these assets will either be administered on their behalf by the child’s guardian or housed in the state-run Guardian’s Fund where they will be administered until your child reaches the age of majority.

The most effective way to bypass this is to set up a testamentary trust in your will and to bequeath any assets intended for your minor children to such trust. In structuring the trust, you can name your children as beneficiaries to the trust, with the trust instrument (i.e. your will) clearly setting out how you would like your trustees to administer the trust assets for the benefit of your children if you are no longer around.

When contemplating such a trust, give careful thought to the onerous job of your trustees and be sure to select them carefully. Managing the trust assets means that your trustees will need to be financially astute, understand investments, and have a good understanding of the legal nature of their job.

Executorship and co-executorship

Although you may be tempted to appoint your lawyer friend or aunt to wind up your estate, this may not be the wisest approach. Family dynamics and relationships are fluid and appointing someone close to you and your loved ones can create unnecessary tension at a time when emotions will undoubtedly be running high. Remember, the role of your executor is to effectively step into your shoes and ensure that your assets are distributed in line with your written instructions. In doing so, your executor may need to make decisions regarding the sale of property or assets and appointing someone with close familial ties may cause unnecessary friction. More importantly, the job of an executor requires the nominated person to have strong financial acumen, a solid understanding of all related legislation, as well as an enormous amount of time to perform the many administrative and secretarial functions involved in estate administration. Ideally, seek out a fiduciary expert who specialises in executorship and who can remain impartial in the winding up of your affairs.

Assets that fall outside your estate

When preparing to draft your will, keep in mind that certain assets fall outside of your estate and will not be wound up by your executor. As a result, it is best to avoid mentioning such assets in your will as this can cause confusion and the potential for misunderstanding after you are gone. For instance, where you have named beneficiaries to your life policies, the proceeds of these policies will be distributed by the insurer in line with your nomination, and there is, therefore, no need to mention these policies in your will. The same applies in respect of any approved retirement funds that you have in place, keeping in mind that your retirement fund benefits will be distributed at the discretion of the fund trustees in accordance with Section 37C of the Pension Funds Act and it is therefore not necessary to mention such assets in your will as it will only serve to create doubt and unnecessary tension.

Bequests

If you plan to make financial bequests to anyone in terms of your will, be sure that you understand the mechanisms of doing so and how it will affect your estate liquidity. If you make a stipulation in your will that a person (known as a legatee) is to receive a sum of money in the event of your death, keep in mind that such a bequest must be paid before the residue of your estate is distributed amongst your heirs. As such, it is important to ensure that there is sufficient liquidity in your estate to ensure that any bequests can be honoured without impacting the financial legacy you intend for your heirs.

Your duty of support

Also important to keep in mind when contemplating your will is that your duty of support does not die with you and that your responsibility to provide financially for your spouse (depending on the nature of your marriage contract) and/or minor children continues post-mortem. If you fail to make adequate financial provision for your surviving spouse and/or minor children, there are legal remedies available to them to claim from your deceased estate, and these claims take preference against all others, with the exception of debt owed to your creditors. Your minor children can exercise their common law right to claim maintenance from your deceased estate, while your surviving spouse can bring a claim against your estate in terms of the Maintenance of Surviving Spouses Act for reasonable maintenance, and such a claim ranks in the same order of preference as that of a minor child.

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Craig Torr

Crue Invest (Pty) Ltd

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