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Be attentive to aspects of your will

“Every new beginning comes from some other beginning’s end.”  – Seneca

As the new year gains momentum (much quicker than some of us would like) and we consider our new year’s resolutions (some of which we may already have broken), there isn’t a better time to ensure that we enter this new year and decade with our personal affairs in order.  The starting point should be to have a look (or re-look)at the aspects of your Last Will and Testament. Be attentive to aspects of your will.

As estate attorneys, we sometimes have to be involved in the regrettable consequences of a poorly drafted and ill-considered Will of a deceased. This is a rather unpleasant responsibility, but it does give us the opportunity to advise our clients of the pitfalls to be aware of in drafting a Will.  In this article, we highlight a few important aspects of a Will that need to be properly contemplated:

  • Where there is a minor child, provision must be made for a testamentary trust or similar vehicle to protect the minor child’s inheritance. Trustees of your choice can be appointed to ensure that the funds are properly administered until the child reaches the age of majority.
  • Divorced parties must nominate the same guardians for the minor children born from their marriage, to avoid leaving different guardians having to approach the High Court to determine what would be in the best interest of the children. As unlikely as it seems that divorced parties will die simultaneously, it happens.
  • Remarried parties with children born from their previous marriages must carefully consider the consequences of bequeathing their respective estates to each other. Don’t automatically accept that the surviving spouse will look after his/her stepchildren, during his/her life or in terms of his/her Will.
  • If a client is in a life partner relationship, it is imperative that the client expresses his/her wishes in a Will, to avoid family feuds leaving the life partner with little or no recourse.
  • Make sure that the Will complies with all the requirements and formalities for validity as stipulated in the Wills Act (Act 7 of 1953). For instance (and subject to certain exceptions), a person (and the spouse of that person) who attests and signs a Will as a witness, or who signs a Will in the presence and on instruction of the testator/trix, or who writes out the Will on instruction of the testator/trix, shall be disqualified from receiving any benefit in terms of that Will.
  • Communicate your funeral/burial/memorial/cremation wishes to your family members, even when your wishes are recorded in your Will – in practice, the Will is only ‘consulted’ once the deceased is buried/cremated.

We cannot reiterate it more – make sure an expert assists you with the drafting of your Will.

“Say not you know another entirely, till you have divided an inheritance with him.”
Johann Kaspar Lavater

Expert Contributor: Chamonie Buys, Director, Johannesburg Office


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