Wills — The Do's and Don’ts

Key Takeaways:

• Crafting a will involves key dos: appointing an executor, specifying assets, and updating regularly.

• Don't overlook legal requirements, like signatures and witnesses, ensuring will validity.

• Professional guidance ensures a legally sound will that accurately reflects your wishes.

What you should not put into your will and pitfalls to avoid, really comes down to legality and practicality.

2021 has started off with a bang around the world – vaccines being distributed, the US in political disarray and our own Zondo commission proving to be a very interesting reading – will Zuma or won’t Zuma be imprisoned?

And with that, most of us find ourselves slowly easing back into “normal” day-to-day working life. Or as normal as these days will allow.

January always starts off a little sluggish and if we admit it or not, we seemingly always leave the really heavy lifting stuff until we really need to, or are forced to, attend to it. And that is not just in relation to our working lives but also to our own personal administrative “to-do” issues.

One of these may be updating (or drafting) your will. And the beginning of a New Year is always a good time to do so…

We have already discussed the mechanics of drafting a will in September 2020 in our article, Your will is yours to make. But we thought it would be a good idea to go over some basics and give you some high level dos and don’ts.

What should you not put in to your will?

What you should not put into your will and pitfalls to avoid, really comes down to legality and practicality.

Legality

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 (and as outlined in our article as listed above), 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 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 court, but at a price. And this takes time. Remember in applying to 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.

To find out the requirements for drafting a valid will, refer to our article Your Will is Yours to Make.

It is always the safest (and best) option to have a professional draft your Will. We know this sounds like an expensive endeavour, 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.

At Benaters we pride ourselves on taking each person’s personal circumstances into account. We will always do our utmost to assist anyone who comes to us for assistance. Especially when it comes to your will and the future of your family. Get in touch with us to see how we can assist you draft a will that is legally enforceable and valid in the eyes of the law.

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 often times, 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 lengthily and often times difficult situation for the joint owner who may need to find alternative accommodation. Benaters is able to advise you on the best course of action should the sale of property be required;

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 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 estates 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 condition that his wife 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, such as Benaters, can guide you with regards 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.

How often should I update my will?

Well, as a rule of thumb one should review their will after any significant change in their life circumstances. For example, marriage, the birth of a child and retirement. You will want to make amendments to provide for these circumstances and failure to do so could result in your wishes not being carried out when you pass on. And that is a shame as it can easily be avoided. The most common example is divorce. A bequest to your divorced spouse in your will, made prior to your divorce, will not necessary fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. This provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation will fall away, and your divorced spouse will benefit as indicated in the will. And an estranged spouse inheriting your estate does not sit well with any divorcee that has just gone through an acrimonious divorce. So be sure to amend ASAP.

However, changes in circumstances are the bare minimum that one should review their will. One should also review their will whenever there are changes to law that would have implications on their estate.

A word of caution however. A will should always be clear and unambiguous so that there is ease of administration. Too many amendments to one will could cause confusion and as a result hardship for beneficiaries trying to understand what is going on. In some cases it is best to better to redraw your will in its entirety (which will take less time than making amendments) and it will ensure clarity.

• Remember that whilst it is important to keep your will up to date, it is dangerous to have several subsequent wills in the custody of different people and organisations. Why? Well, an amended will does not necessarily revoke (or cancel) an earlier will. An amended or updated will must be properly signed in accordance with the provisions of the Wills Act and clearly state that it revokes all previous wills and codicils to effectively revoke (or cancel) all previous wills and give effect and validity to the amended will.

• Should you however pass leaving more than one unrevoked will, the rule of thumb in terms of common law is that the wills must be read together and reconciled, and the provisions of the earlier testimonies are deemed to be revoked in so far as they are inconsistent with the later ones. Where there is conflict between the two wills, the conflicting provisions of the earlier testament are deemed to have been revoked by implication.

Can I amend my will without telling my spouse?

Well, yes and no. How you were married often comes into play.

Whilst South African law values people’s ability to bequeath their belongings in a will as they deem fit, their marital and other relationship regimes could limit a testator’s ability to freely pass on wealth. Drafting a will is complex, regardless of the size of your estate, and can be made even more complex by the presence or absence of a marriage, and by the choice of marital regime in the case of a marriage - whether you were married in community of property, out of community of property, the terms of your ante-nuptial contract (with or without accrual) all come into play -

• If you are married in community of property, you cannot leave your assets to whom you like, because you own only half of them – the other half are owned by your spouse. In such instances, both spouses own everything in equal shares and this means that one party cannot bequeath what belongs to a partner without that spouse’s permission – you have to tell your spouse;

• If you are married out of community of property but with accrual, upon death (or divorce) of one of the spouses, the increase in the real value (after adjustment for inflation) of the estate of both spouses, is added up and divided by two. Where the first dying party has the smaller accrual, the claim will be against the survivor who will have to pay the claim unless he or she inherits more than the amount of the claim. Should the entire estate be bequeathed to someone else (e.g. children), administration can become quite complicated if the surviving spouse does not have sufficient cash to settle the claim. This can be a particularly thorny issue in a second or third marriage if the surviving spouse has to pay a claim to the estate, but the beneficiaries are not his or her own children – here you have to tell your spouse only insofar as it may affect any claim against their accrual,

• If you are married out of community of property without accrual – this is the most simplistic regime with regard to the administration of the estate, because there is no accrual claim and parties will generally be able to dispose of their assets as they please. One exception is where the survivor is left with insufficient support, in which case there may be a claim under the Maintenance of Surviving Spouses Act 27 of 1990, where a surviving spouse may have a claim for maintenance against the estate of the first-dying spouse in respect of "reasonable maintenance" until death or remarriage, but only in so far as he or she is unable to provide for their own maintenance from his or her own means and earnings – here you do not have to tell your spouse.

Can I put my dog in my will?

As we covered in our article Your Will is Yours to Make, as long as it is not illegal, impractical or against public policy you can leave anything to anyone in your will. Provided your will is valid. For example, you can specify in your will that you are leaving your entire estate to your beloved fur child (this happens). Or you could leave your entire estate to a charity like the SPCA or Kitty and Puppy Haven. Perhaps even your favourite church. It is entirely up to you. Which seems obvious. But it is important to note that you do not have to leave all your assets to family, if that is not your wish. You have choice.

So, if your wish is to leave a portion or the whole of your estate to your beloved pooch, ensure this is clearly set out in your will with all necessary and practical provisions to allow its enforcement. A legal professional with the appropriate circumstances, such as Benaters, will be able to assist you with this.

At this point, we thought we would take the time to include some Frequently Asked Questions (FAQs) for ease of reference –

Q: I drafted my own will and signed it the same night without any witnesses (a requirement under the Wills Act). Can witnesses sign at a later stage?

A: The Wills Act requires that the testator and witnesses sign in the presence of one another. By not having a witness sign your will in your presence, your will is deemed invalid.

Q: I am unable to physically sign my will due to a disability (physical or otherwise) or injury. Is there another way I can sign my will?

A: If you cannot sign your will, you can “sign” it by making a thumbprint or X. If a thumbprint or X is used, the will must be certified by a Commissioner of Oaths indicating that she/he is satisfied with the identity of the testator and that it is indeed the will of the testator. You must therefore place the thumbprint or X on your will in the presence of the Commissioner of Oaths, as well as the witnesses to ensure its validity.

Remember there are many pitfalls, complexities and regularities that need to be dealt with and complied with when drafting a valid and legally enforceable will. Whilst many people draft DIY wills (being penny wise and pound foolish) they cause more difficulties for the beneficiaries who need to deal with shortfalls and irregularities in DIY wills during an already difficult time. Ensure issues such as estate planning, the appointment of your Executor, estate duty, capital gains tax and other intricacies are dealt with properly by professionals. At Benaters we are poised to assist you with your estate planning needs. More so, we are here to support you during this often stressful time.

Do not put it off, get in touch with us today to see how we may best assist you with your various estate planning needs.

Written by Alicia Koch on behalf of Benaters