The Dos And Don’ts Of Drafting A Will – Common Missteps And How To Prevent Them

Drafting a will is essential to ensure your wishes are honoured after your passing. Without one, your estate will be distributed according to the Intestate Succession Act, which may not reflect your intentions or align with your loved ones’ needs. Taking the time to create a properly structured will gives you control over your legacy and provides clarity and security for those you leave behind.

During a difficult and emotional time, the last thing your loved ones need is the added burden of an improperly drafted will. Understanding the key dos and don’ts can help simplify the process, prevent complications, and give your family the peace of mind they deserve.

 

The “dos” of drafting a will

The Wills Act of South Africa outlines the necessary requirements for drafting a valid will. It is important to adhere to these requirements to prevent your estate from being distributed according to the laws of intestate succession.

Testamentary capacity:

In terms of Section 4 of the Wills Act, a testator or testatrix must have the required testamentary capacity to draft a valid will. This means the testator or testatrix must be of sound mind, fully understanding the nature and consequences of their actions when drafting the will. This includes having knowledge of their estate and the implications of their decisions. To establish testamentary capacity, four key requirements must be met:

• Mental soundness – The testator or testatrix must have a clear and sound mind, fully comprehending the nature of the act and its consequences.
• Awareness of assets and beneficiaries – The testator or testatrix must be aware of their assets and the individuals they wish to bequeath it to. While this is not explicitly stated in the Wills Act, it is a well-established principle in common law, supported by South African courts as essential in determining testamentary capacity.
• Voluntariness – The testator or testatrix must make decisions free from undue influence, ensuring that the will reflects their true intentions, without coercion or manipulation from others.
• Age – The testator must be at least 16 years old to draft a valid will.

Assets inventory:

While it is not necessary to list every asset in your will, it is crucial to compile a comprehensive inventory of assets to streamline the administration process and avoid unnecessary delays. The testator and/or testatrix should ensure that all pertinent documents and information related to their personal affairs (such as the original title deed, marriage certificate, divorce decree and settlement, vehicle registration papers, etcetera) are securely stored in a designated location. Additionally, the testator and/or testatrix must ensure that their beneficiaries are aware of where these documents are kept, allowing the beneficiaries to provide the executor with the necessary information for efficient estate administration.

Marital exclusion clause:

Incorporating a marital exclusion clause into your will safeguards your beneficiaries by ensuring that any assets they inherit will remain separate and will not be subject to division in the event of a current or future marriage.

Cremation or organ donation:

It is important to ensure that someone, preferably your beneficiaries, is aware of your specific wishes in respect of the disposal of your bodily remains, as most wills are typically disclosed only after the testator or testatrix’s funeral and the issuance of the death certificate. In some cultures, a designated grief period may prevent the estate from being reported until it has passed. As such, if the deceased was an organ donor and the beneficiaries were unaware of this decision or they wanted to be cremated instead of buried, the relevant provisions in the will may not be effectively implemented.

Other legal requirements:

A will must be in writing, either typed or handwritten. Every page of the will, including the final page, must be signed by the testator and/or testatrix. Additionally, the will must be signed by two competent witnesses. A competent witness is someone who is at least 14 years old. The term ‘sign’ encompasses not just a full signature but also initials or a mark made by the testator and/or testatrix. If the testator and/or testatrix uses a mark instead of a signature, a Commissioner of Oaths must certify the will, confirming that they have verified the testator’s and/or testatrix’s identity(ies) and are satisfied that the will reflects their true intentions. It is also important to note that digital signatures are not permitted. The witnesses as well as testator or testatrix must be present at the same time and the will needs to state that all parties were present at the same time.

 

The “don’ts” of drafting a will

Don’t use vague, unclear or ambiguous wording

Clarity is key when drafting your will. Vague or unclear language can create confusion and lead to disputes. To avoid misinterpretation, your will should be written in specific, straightforward terms, leaving no room for ambiguity or misunderstanding. Clear and precise wording ensures your intentions are accurately followed and minimizes the risk of contestation.

Don’t name beneficiary(ies), executor, guardian(s) or trustee(s) who are also witnesses

A nominated, beneficiary(ies), executor(s), trustee(s) or guardian(s) of a will should not act as a witness, as doing so can lead to their disqualification from receiving any inheritance or being able to be appointed as an executor, trustee or Guardian of the estate under that will. If a beneficiary does act as a witness, they risk forfeiting the bequests designated to them, with their portion potentially being redistributed to other beneficiaries or limited in terms of the Intestate Succession Act.  Executor, trustee or guardian who signed as a witness will lose their right to act upon their nominated position. To avoid this complication, it’s advisable to choose witnesses who are not nominated in the will or related to anyone nominated in the will.

Don’t neglect to keep your will updated

Neglecting to update your will after significant life changes, such as marriage, divorce, or the birth of children, can result in unintended beneficiaries or outdated instructions. Additionally, be sure to revise your will whenever you acquire new assets to ensure your estate reflects your current circumstances and intentions.

Don’t neglect to make provision for a minors’ inheritance

Many parents name minor children as beneficiaries of assets like insurance payouts, property, or investment proceeds. However, if a trust is not set up to manage the inheritance on behalf of the minor, the assets will be held by the Guardian’s Fund, administered by the Master of the High Court. This public entity typically invests the assets in low-interest-bearing investments, which may not be in the best interest of the minor beneficiaries, particularly if they are very young, potentially limiting the growth of their inheritance. To ensure the funds are managed wisely, it is advisable to establish a trust.

Don’t fail to appoint an executor

If you do not appoint a trusted and competent executor, it can lead to uncertainty and complications in managing your estate. This omission can result in delays, confusion, or even disputes over who should handle the responsibilities of administering your estate and distributing your assets.

Don’t forget to name alternate beneficiaries

Failing to designate alternate beneficiaries can lead to complications if your primary beneficiaries pass away before you. In such cases, your assets may go to unintended heirs, which could result in confusion, disagreements, or even legal challenges among your loved ones.

Don’t forget to include a clause that deals with the residue of your estate

Neglecting to designate the residue of your assets in your will can lead to them being distributed according to the Intestate Succession Act, which may not align with your intentions. It is crucial to clearly outline the disposition of all assets not explicitly specified in your will, including immovable property, bank accounts, motor vehicles, and digital assets such as online accounts and cryptocurrencies.

Don’t forget to keep your original signed will safe

Ensure that your original signed will is kept safe by a trustworthy person or institution, as a copy of a will is not deemed a valid will.

Don’t overlook seeking legal advice

Although not legally mandatory, seeking the guidance of a legal professional when drafting your will can significantly enhance its legal integrity, structure, and clarity, minimizing the risk of disputes or complications. A legal expert can offer valuable advice on tax implications, asset distribution, and the selection of an appropriate executor, ensuring that your intentions are clearly articulated and legally enforceable. Taking this proactive step can safeguard your beneficiaries and reduce the likelihood of unnecessary legal challenges and delays.

 

Planning for the future

The dos and don’ts outlined above help you avoid common pitfalls when drafting your will, ensuring that your final wishes are clearly stated, legally valid, and protected from potential disputes or unnecessary complications.

 

For expert support in estate planning and administration, contact Hammond Pole Attorneys today. Our team is dedicated to helping you make informed decisions that protect your legacy and provide peace of mind.

 

Blog by: Henrietta van Vollenstee

Rietta van Vollenstee: RietteVV@hammondpole.co.za