Writing a will has to be the event most put off and postponed. People don’t like thinking about death, and in the end, they tend to do it as a rushed job, or simply because their local bank is offering the service for free. The truth is though, that this little document is going to determine how many people remember you, and just how much you leave for your relatives after a lifetime of work, so care needs to be taken in its construction.
Drawn up correctly, a will can save your loved ones time, money and ultimately emotional pain, so it is worth doing well.
Leanne Van Wyk from Gerhold & Van Wyk attorneys is an expert in wills and the winding-up of estates and says that there are a number of ways people can make mistakes when drawing up their will that may end up costing their relatives a fortune and leave more headaches than solutions.
She advises that those seeking to get a will do not go to services that on the surface appear to be free as the costs of these are often hidden and payable only after the client has passed on.
“All estates are required to be wound up with the assistance of an accountant or an attorney if their value exceeds R 250,000.00,” she says, explaining that this will not come free for your loved ones at the time of your death. “Don’t leave the selection of this up to someone who would be profiting from the decision. Make it yourself, and choose an executor in your will who you trust, who understands your finances and who will, more importantly, ensure that your wishes are conveyed and that your beneficiaries will benefit under your will.”
Unfortunately, she says, drawing up a will is not something that is ever free or cheap.
“It may seem tempting and convenient to purchase a will template from a stationery store or download a template from the internet, but it is best to avoid doing so,” she says, adding, “Rather have a professional assist with the drafting of your will as it may have painful consequences for your loved ones in the event that the will is not compliant with the Wills Act 7 of 1953, and is declared invalid with your wishes cannot be carried out by your appointed executor.”
Having your will declared invalid would effectively mean you are dying without one, and your estate could now take years to wrap up with your loved ones getting absolutely nothing.
Signing the will
The most common problems she finds always occur with the signing of the will. According to van Wyk there are numerous ways the simple act of getting signatures on paper could invalidate the whole document.
“When signing your will, your signature must be witnessed by two witnesses above the age of fourteen. These witnesses may not be entitled to any benefit (be beneficiaries) under the will,” she says.
Additionally, van Wyk advises that the will should be signed in the presence of an attorney or notary who will be able to ensure your document complies with the requirements of a valid will and is therefore not invalidated at a later stage. She says this is doubly important for people who are physically unable to sign their wills.
“If you’re signing with a mark or you are unable to sign due to physical impairment or are signing using a fingerprint or other means, you need to ensure that your mark is attested to by a notary or a commissioner of oaths who will certify your identity. Without this the will can be declared invalid,” she says.
Unbelievably these aren’t the only problems she has witnessed when it comes to signing a will.
“People must also ensure that when they sign their will, that each and every page of that will is signed by themselves and the two witnesses,” she says. Explaining that these signatures need to be as close to the written content of the will as possible as if this requirement is not followed the will may also be invalidated.
On this point, she says it is extremely common these days for people to keep their will online, or on flash disk, and never actually print it out and sign it.
“Your will must be printed out, signed and witnessed. Typing your will and leaving the contents on your laptop and never getting around to signing and witnessing will result in the will not being immediately valid,” she says, explaining that the process to try and then validate the will is a long and costly one.
“Your family members will not automatically be entitled to the benefits under your non-compliant will and would be required to make an application to the High Court in order to have the will declared valid,” she says. “There is no guarantee at all that the Court will declare the document to be a valid will and your estate may eventually devolve intestate in terms of the Intestate Succession Act 81 of 1987.”
Van Wyk also advises that people sign more than one copy of their will saying that when it comes time to hand over your will to the Master of the High Court, the Master will require an original will and will under no circumstances accept a copy, certified or not.
“Ask a trusted relative or friend to store one on your behalf, and perhaps a third to be provided to your attorney or accountant for safekeeping. Advise your trusted relatives, friends and attorney of the whereabouts of your will, so that in the event of your death they will easily be able to present the original,” she says.
In what’s become an all too common refrain, van Wyk explains that should an original will not be presented to the Master of the court either your deceased estate will devolve intestate i.e. not in accordance with your will, or your heirs would have a long process in the High Court to go through to have it recognised.
Be clear
There are numerous good reasons for using a lawyer to draft your will that go well beyond the fears of it not meeting up with the legal requirements.
Van Wyk explains that lawyers can also speed the whole process up and ensure that your money is paid out to your loved ones much faster following your death, by simply removing confusion and ambiguities that can be present in wills.
Property needs to be described clearly and with enough clarity that there can be no confusion over what is meant. Instead of saying for example, “My house”, say, “The property located at 27 Duchess Lane, Winchester Hills, Florida” or instead of saying, “Granny’s jewellery”, say, “The 18-carat gold ring with 0.8-carat central diamond stone that once belonged to my mother”.
“Likewise, you should be as specific as possible when naming your beneficiaries in your will,” explains van Wyk. “Rather than saying ‘my children’, specify the names of your children or alternatively specify, ‘my children born of the marriage between myself and my wife Jean’.”
Important often forgotten considerations
When we have small children we are often young and therefore do not consider the possibility of death. Van Wyk says she has often seen people die with wills they drew up in their twenties valid and with absolutely no mention of what is to become of the children.
“If you have minor children, it is always best to consult with a professional to discuss the options of creating a testamentary trust in your will,” urges van Wyk. “This will safeguard your minor children’s interests in the event that you pass away prior to them obtaining the age of majority and they are unable to receive a benefit under the will while they are a minor.”
In fact, she says it is advised you revise your will after every major life change such as a divorce, death or birth of a child. She explains that there are numerous small, strange laws that can see the deceased’s real wishes totally negated if this is not done.
“For instance, the Wills Act 7 of 1953 makes specific provision, in terms of section 2B, for the instance where a testator dies within three months of the Court ordering a decree of divorce or within three months of a marriage being annulled,” she says.
“If the testator dies with three months of the divorce or annulment, the testator’s ex-spouse will be regarded as having pre-deceased the testator and not inherit in terms of the will, unless of course, the terms of the testator’s will specifically make provision for the ex-spouse to inherit even in the event of the divorce,” she adds. “However, after a period of three months has passed from the date of divorce or date of annulment of the marriage and the testator passes away without having amended his will, the testator’s ex-spouse will inherit under the previous will.”
In a modern world though there are other small issues to take into consideration too. It is, for example, becoming more common for people to explain to loved ones what they want to happen to their social media accounts.
“You may also provide directions regarding what you want to happen to your body in terms of burial or cremation,” she says. “If you would like for your organs to be donated, you can authorise your organ donation by means of a clause to this effect in your will, as consent from your next of kin is required. Your next of kin and executor are obligated to carry out your wishes as set out in your will.”
A lawyer could save you money
Additionally, lawyers are able to help with questions around how you distribute your money, or even how to save money for your relatives upon your death.
For instance, van Wyk explains that if you are the holder of insurance, annuities, life policies and/or a retirement fund, you should ensure that you have specifically named beneficiaries, on those policies rather than leaving the area blank or simply directing it to your estate.
“This will ensure that the money due in terms of the policies is paid directly to the named beneficiaries in the policies and do not form part of your deceased estate,” she says.
While this can seem a small detail it can save money because while the policies are still regarded as deemed assets for estate duty purposes, the money being paid out then does not form part of your deceased estate for debt purposes and are paid directly to your named beneficiary instead.
In the end, a will is going to be one of the most important documents you ever write, think about it carefully.
