Whats in a will?

Category: Estates

11 July 2015  |  by Chamonie Buys

Whenever the topic of a Will comes up I am reminded of a quote in a well-known South African case:

“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. This is by no means a recent phenomena …the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice – ”Raubenheimer v Raubenheimer (560/2011) [2012] ZASCA 97.

I am sure you really meant to get around to updating your will after your divorce … the birth of your child … your big move … the start of your now-blossoming business, but you just haven’t found the time yet. The right time, if any, is now.

One of the most common mistakes people make when considering a Will is assuming that their estates are not worth enough to warrant it. We work so hard to accumulate assets for ourselves when we are alive and for our loved ones when we are no longer around to provide for them, but leave the distribution of the hard-earned wealth to chance.

The truth is, even though certain property is not part of your estate, it still may be dutiable. Assets such as life insurance proceeds, accrual claims, foreign assets, usufructs and fiduciary interests are included in your estate for the calculation of executor’s fees and estate duty. Your Will is the document that gives dignity to your financial affairs and determines the proper distribution of your estate when you are no longer here to do so.

For a Will to be valid, there must be absolute compliance with the requirements of the Wills Act and failing this it will be rejected by the Master, which may lead to a High Court Application to rectify what should have been done correctly in the first place. Section 2(3) permits a court to direct the Master to accept a Will or an amendment to a Will which does not comply with the requirements of the Wills Act, but which a High Court is satisfied was drawn by the testator and clearly reflects the testator’s intention to be his last Will or an amendment thereto. This is clearly an expensive solution and can quite easily be avoided by using a professional to assist with this important document.

It is furthermore imperative that your Will be updated on a periodic basis, but especially when there is a change in your status such as birth, death, marriage or divorce. Proper storage of a Will is also quite important as the original will be required. The Master may only accept an original or a duplicate original Will in terms of section 8 of the Administration of Estates Act.

A Will is a letter of gratitude and love to those you leave behind so don’t compromise on this gift.