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How (not) to draft a will

The pitfalls of a DIY approach.

JOHANNESBURG – It might be easy to argue that a will is an unnecessary document, especially if it won’t make any difference to the distribution of the assets in the estate.

But beware.

The argument is flawed for two reasons. Dying without a will will result in a delay in the administration of the estate. The Master of the High Court will have to appoint an executor on behalf of the deceased and this can delay the process considerably. He or she also has to consult family members before an appointment is made. If they are not satisfied with the appointment, it could result in a lengthy and costly court battle, says Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa (Fisa).

Moreover, the rules of intestate succession are rigid. The estate has to be divided as prescribed even in cases where it may not be practical, he says.

Situations might also arise where someone was convinced that the estate would be divided in a particular way, while it might practically not be the case. In the South African environment there might be more than one surviving spouse for example.

However, the mere existence of a will does not necessarily solve the problem.

“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign,” Judge Leach said during a 2012 Supreme Court of Appeals judgment.

Van Vuren says estate and will planning requires a working knowledge of anywhere between 20 and 40 pieces of legislation, the common law rules of succession and the case law on wills.

“You walk unwittingly into a minefield if you think you can do it yourself.”

Practically there are often instances where these wills don’t comply with the formalities of signing a will.

Van Vuren says in a case that escalated to the High Court, a husband bought the necessary forms at CNA and drafted a “will” on behalf of his terminally ill wife.

While there is a process in the Wills Act whereby a court can declare a document that was not properly witnessed to be the will of the deceased, his application didn’t succeed because the particular document wasn’t signed or drafted by the deceased wife.

There may also be instances where invalid or impractical provisions are included.

While a provision to bequeath R1 million to your daughter on condition that she does not marry a Jew, would be invalid as it would discriminate against someone on the basis of religion and therefore contrary to the Constitution, it would also be against the good morals of society in terms of common law principles, Van Vuren says.

In another case that went to court some years ago, the deceased owned several pieces of land. At the time the will was drafted the allocation of these properties to specific beneficiaries wasn’t that important, but shortly before the testator passed away a township development was built on one of the pieces of land, which inflated the value considerably and resulted in a dispute between the beneficiaries. Unfortunately, the land was so poorly described in the will that the executor was unable to determine the deceased’s wishes in this regard. Had the deceased testator sought professional help when the will was drafted, the problem could have been avoided.

A valid will

For a will to be valid, the Wills Act requires that the testator needs to sign at the end of the document. If the will consists of more than one page, the other pages have to be signed as well.

Two witnesses over the age of 14 who are in sound and sober senses and who can testify in court must also sign at the end.

Van Vuren says to remove the potential for disputes about whether certain pages were included from the beginning it is good practice for witnesses to sign each page, but this is not required in terms of the act.

The act stipulates that the witnesses must sign the will in the presence of the testator and one another.

The testator must also be in sound and sober senses.

Although South Africans have to be at least 16 years old to have a will, there is no upper age limit, which is the case in some European countries. The oldest person found by a court to be in sound and sober senses in South African case law was 107, Van Vuren says.

Importantly, anybody who benefits from a will, whether as beneficiary, executor or trustee, or as a guardian for minor children, should never draft the will on behalf of the testator or sign as a witness.

“There is a section in the Wills Act that disqualifies any of those from inheriting from the testator,” Van Vuren says.

While the common law of succession allows you to disinherit your spouse completely, he or she could institute a claim against the estate in terms of the Maintenance of Surviving Spouses Act if he or she is left without sufficient financial support. This type of claim will have preference over bequests. However, the deceased’s liabilities will have to be settled first, Van Vuren says.

Brought to you by the Fiduciary Institute of Southern Africa (Fisa).

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Never write anybody into your will that is not a beneficiary!

3rd parties, e.g. lawyers, accountants, financial advisors, banks, love to write themselves in so that they can rip off your estate upon your death.

Do not make anybody an executor if they are not family.

That way, it allows your executors to shop around for the best price to process the will. Otherwise you are tied in to the 3rd parties who wrote themselves in.

Even if you have a will that is written with a 3rd party at the moment, you can change it by simply updating it.

Pick your own executors. If they are heirs then so much the better. They can then enlist the help of an honest lawyer (if they can find one that is 🙂 ) to assist with the winding up of the estate.

If you appoint your bank, your heirs may find a 19 year old totally inexperienced pimpled youth determining what to do with the assets you inherited. He will be someone you have never met or would not trust with disposing of your dogs kennel if you knew him personally. But, you gave up your soul to the bank and he would be acting on behalf of the bank who’s only and sole interest is to get their hands on the 3,5% executors remuneration calculated on the value of the estate on the date of death. Like most lawyers who get appointed as executors, the banks could not care less about the heirs. These predators can and often do also drag the estate on for years so that they also get a percentage of the money invested before payout date to widows and heirs. They can sell you car to their pals and you would be none the wise and neither will your heirs be. So, who you appoint as executor/s is of paramount importance. Don’t be persuaded to choose the bank or a smart ar$ed lawyer. Your will is supposed to protect your loved ones from those unscrupulous ‘experts’.

You will find more sharks and predators out there handling estates than you will find in our coastal waters.

I certainly wouldn’t make heirs executors, you are opening yourselves up to lengthy family feuds.
It is best to find a competent attorney or bank and get them to commit up front how much their fees will be and then haggle to bring them down.
It is best to select your most stable and financially competent kid to be a co executor, as then the kid can keep the executor in check and also the executor can’t make arbitrary decisions on grey areas in the will nor double deal on fees. Also be aware that when the estate is paid across to the surviving spouse that the fees upon the demise of the surviving spouse are not calculated based on the surviving spouses total estate it must be calculated on that spouses estate excluding what he/she received from the first demised spouse. Also be very aware of transfer fees and name change fees especially for property and shares, U/T’s as there are CGT implications

I had a case in our family where an unknown will was found by the bank just before the distribution process. They asked how much the value of the Estate was and when they heard it was just over R2m they quickly said they were happy to forego their nomination as executors. Too much effort for the fees expected. Says it all doesn’t it?

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