What not to do when drafting a Will
What NOT to put in your will?
What you should not put into your will really comes down to legality and practicality.
Firstly, you cannot (as with any contract) include anything that is contrary to public policy, illegal, immoral, against common law principles, or contrary to the Constitution. In addition, one would need to comply with the Wills Act 7 of 1953.
A pitfall with trying to draft a do-it-yourself (DIY) will is the failure to comply with the formalities of the Wills Act, resulting in the will being regarded as invalid, even if the terms of the will are legally acceptable. In finding out that a will is invalid due to not complying with the statute, one may apply to a Master of the High Court to accept the document, but this is a costly exercise and delays the finalisation of the estate. Which is not ideal.
Another problem that often arises out of DIY wills is that certain beneficiaries who are nominated in the will end up being disqualified from receiving benefits. Why? Well, this could be innocent mistakes and simply relate to oversights (and not complying with the Wills Act) and could include –
a) the beneficiary signing as a witness, and/or
b) the beneficiary writing out the will on behalf of the testator.
If a beneficiary does either of the above, neither he/she nor the beneficiary’s spouse will be entitled to inherit. Why? Because the will is invalidated due to non-compliance with the Wills Act.
Again, the beneficiary (who is disqualified) has recourse to the court, but at a price. And this takes time. Remember in applying to the court, the result is not always as intended – in some instances, the beneficiaries’ inheritance can be reduced by the cost of the High Court application, not to mention the delay in the administration process.
It is always the safest (and best) option to have a professional draft your Will. We know this sounds like an expensive endeavor, especially in today’s uncertain times, but in the long run, it will ensure that your will is carried out, properly and according to your instructions. Even if your estate is humble. Rather be safe than sorry.
Practicality (and simple oversights)
You should not give away any jointly owned property through a will as it typically passes to the joint owner when you pass away – and herein lies the quandary. Firstly, you need to understand the conditions placed on a mortgagee under the National Credit Act 34 of 2005 (NCA). Under the NCA, which makes lending far more onerous, the joint owner would need to reapply for the mortgage and would need to qualify for the mortgage in their own right. And oftentimes, the inheriting joint owner, spouse or partner, finds that they, unfortunately, do not qualify for the bond on their own. In these circumstances, the property will inevitably have to be sold resulting in a lengthy and oftentimes difficult situation for the joint owner who may need to find alternative accommodation.
In this same vein, a testator bequeathing his estate in say Leopard Creek Golf Estate to his spouse, without stating whether it is with or without the mortgage bond, is erroneous. An assumption exists that where an asset on which there is still a debt (also called an encumbered asset) is bequeathed to an heir will automatically pass without the debt (unless the will explicitly says otherwise). However, this is not entirely accurate. According to Section 4(b) of the Estate Duty Act, 45 of 1955, all debts owed in South Africa will qualify as deductions against the gross value of the estate in order to determine the net value, before any bequest is made i.e. the outstanding debt will be paid out of the estate, which reduces the estate's residue. Therefore, always be specific in your will about who takes over the debt of any asset that is burdened, whether it is property, a vehicle, or a boat;
Try to avoid conditional gifts in your will since the terms might not always be enforceable – for example, a husband may bequeath a sum of R5 000 000 on the condition that his wife does not use her mobile phone or access Instagram for a period of 30 days following his death. Whilst not illegal, immoral, or against public policy, it would be very difficult to enforce as no one can legally enforce the terms. The condition does not invalidate the will, and the wife will most likely still inherit her R5 000 000 even if she accesses Instagram and posts a picture of herself at his funeral the same day. However, it has been said that one of the major motivations for inserting a condition in a will is that the testator wants to change the behaviour of heirs. For example to get a brother to stop smoking, to try to get a child off drugs, or perhaps to reduce the time a wife spends on the phone. But to be effective, the condition needs to have two attributes – it has to be enforceable, which means that someone has to be able to determine whether or not the behaviour change has taken place. And it has to have a sanction if the behaviour change does not happen. A sanction would be that the money or assets left to the heir are specifically withheld or directed elsewhere. If the condition you want to impose contains an element of time – such as “my wife must look after my Rottweiler until it dies before she can inherit the R5 million bequest” – you will probably need to set up a testamentary trust in your will, because an executor cannot delay the wrapping up of the estate until the prescribed period of time has lapsed. Remember, you may successfully implement conditions to your will but you will need to be very careful about inserting clauses that are against public policy because they will immediately be considered invalid and ignored by a court. What exactly constitutes “public policy”? Courts are guided by, among other things, the Constitution and South Africa’s international treaties.
A DIY will does not always include all the necessary provisions, such as taking into account the fact that minor children cannot inherit cash or moveable property. Assets can be administered for them by means of a trust, but in the absence of a trust, the money will be held by the Guardian’s Fund of the High Court. It may be prudent, depending on the amount involved, to deal with this in the will either via a testamentary trust or some other mechanism where the property and any other assets are held in the trust for the minor rather than in the care of a guardian. The guardian may be a trustee of such trust, but you would also have the option to nominate additional trustees to the trust, such as another family member or a professional trustee, to ensure the trust assets are managed in an unbiased way. Legal professionals can guide you with regard to how to go about doing this. Fixed property can be registered in the name of a minor child or children. A guardian of a minor may not sell the property without the consent of the Master of the High Court. Should they wish to sell the property, the guardian would need to make an application to the Master of the High Court who will assess and determine whether or not to approve the request on the basis of the sale being in the best interests of the minor.
Mahumani Incorporated Attorneys specialise in providing expert advice and services in respect of the following; estate planning involving the Drafting of Wills, Deceased Estate Administration and Trust Administration.
Contact us today to discuss your will and testament.