Interpreting your Will
It is not only essential that the contents of a Will are understood by the reader, but (most importantly) that it is not misunderstood. Ambiguity must be avoided by the draftsman and all possible interpretations should be considered to ensure clarity in what the testators’ wishes are. Similarly, all possible contingencies and circumstances in which the Will may operate must be considered.
Words like “money”, “effects” and “movables” are vague and depend upon their context for their meaning and are capable of more than one meaning – these words should be avoided or precisely defined. The order of the Will should be logical and properly structured.
Beneficiaries should be clearly identifiable, preferably by their full names and identity or passport numbers. If a beneficiary’s full names and identity number are not available to the testator/trix, the beneficiary should be identified by another distinguishing factor, such as his/her relation to the testator/trix or his residential address. Where a bequest is left to an institution, the exact name and description of the institution must be provided.
What is a legatee and a legacy?
A legatee is someone to whom a specific item is bequeathed by the testator/testatrix. The bequest to a legatee is called a legacy. Clients should be mindful of the fact that where a large cash amount is bequeathed to a legatee, this may result in a cash shortfall in the estate, which will force the executor to liquidate assets which the testator/testatrix may have intended to be available to residuary heirs.
What is a residuary heir and the residue of an estate?
A residuary heir is the person or persons who will receive what is left after payment or distribution of legacies and payment of estate duty, creditors, taxes and administration expenses in such proportions as stipulated by the testator/testatrix. This is called the residue of the estate.
Substitution of Beneficiaries
A testator/trix must make provision for the substitution of a beneficiary if such beneficiary dies before the deceased, dies simultaneously with the deceased, repudiates his benefit or is otherwise disqualified from receiving the inheritance.
2C(2) of the Wills Act stipulates that if a descendant of the testator/trix, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator or had not been disqualified from inheriting, the descendants of that beneficiary shall per stirpes (by representation) be entitled to the benefit, unless the context of the will otherwise indicates.
It is therefore important that the testator/trix considers nominating replacement beneficiaries of his/her choice if he/she does not intend for that beneficiary’s own descendants to inherit from the testator/trix.
The actual item bequeathed should be accurately described so as to avoid ambiguity, for example, a motor vehicle should be described by make or kind, colour and license number, immovable property should be described by its address and land should be described by its title-deed number or title deed description.
Where a testator/trix bequeaths agricultural land to more than one person, the testator/trix must be made aware of the provisions of Section 3 of the Subdivision of Agricultural Land Act, which prevents the sub-division of agricultural land and the registration of the undivided agricultural land in more than one person’s name.
Where a bequest is left to two or more persons and the testator/trix does not stipulate in which proportions or percentages, the bequest must in law be divided equally between the beneficiaries. The use of the words “in equal shares” is interpreted, in law, to mean that if one of the named beneficiaries dies/die before the testator/trix, such benefit shall in the case of a legacy, fall into the residue of the estate and in the case of an inheritance, devolve upon the predeceased beneficiaries’ intestate heirs unless the testator/trix directs otherwise.
Adopted children and children born out of wedlock
Section 2D of the Wills Act provides, unless the contrary is indicated in the Will, that an adopted child shall be regarded as being born from his adoptive parent/s and that the fact that a person was born out of wedlock shall be ignored in determining his relationship to the testator/trix.
Per stirpes means a distribution by representation. Where the testator/trix leaves a bequest to his children, X and Y, per stirpes, and his children are predeceased, one-half of the bequest must be divided among the children of X and one-half among the children of Y.
Collation refers to the process whereby gifts or donations made by the testator/trix during his/her lifetime to a beneficiary must be “collated” (or, in simple terms “reported”) to the executor and must be deducted from the beneficiary’s inheritance in calculating the value of the benefit to the beneficiary.
A testator/trix may direct in his Will what gifts or donations should be collated by his beneficiaries or that no collation by any beneficiary shall be required.
Where a testator/trix has minor children, guardians must be nominated in the event of the death of the natural guardian/s. Where parents of minor children are divorced, the divorced parents must agree on who to nominate, in their Wills, as their minor children’s guardians in the event of the passing of both parents. If divorced parents nominate different guardians in their separate Wills for their minor child/ren, the nominated guardians are left with no alternative but to approach the High Court (as the upper custodian of all minor children in South Africa) for a determination as to who must be appointed as guardians in the best interest of the minor child/ren.
Contributor: Chamonie Buys