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Your Will - A Letter of Gratitude

30 November 2013

Cover Magazine

Cover Magazine, November 2013 p.94

"A good Will is not that it will stand up in court, but that it will not need to go to court at all."

On 1 June 2012, five judges of the Supreme Court of Appeal noted ...

"It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign ... Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice."1

It is time to revisit the concept of a "Will" and change the paradigm. A Will has nothing to do with the dying, but has consequences for those who survive. A Will is a letter of gratitude; your obituary to your near and dear ones who survive you.

You really meant to get around to updating your Will after your divorce ... the birth of your child ... your big move ... the start of your now-blossoming business, but you just haven't found the time. The right time is now!

You have meticulously attended to your financial affairs during your lifetime in the hope of providing security and comfort for your loved ones when you are no longer able to do so. Your Will is the document that gives dignity and order to the distribution of your estate.

Ensure that your Will leaves a legacy of love and not a deluge of destruction, resulting from ill-advised clauses in a badly drafted Will, and leading to conflict, the breakup of families and inevitably the delay and expense of very costly litigation. Words are cold and clinical and, unless properly thought out and used correctly, they do an injustice to the true intention of the testator. Poor drafting does result in anomalies.

Your Will should be a practical document in simple language which records your intention and is easy to understand and execute. 'Do-it-yourself cheapies' are really not adequate - do not compromise on this gift.

The Master of the High Court's right is limited to accepting only an original Will or duplicate original Will (not a photocopy) that complies absolutely with the strict requirements of the Wills Act. The only way to remedy a breach of the formalities in limited specific circumstances is by application to a High Court at exorbitant costs and delay to rectify what should have been done correctly in the first place.

The Wills Act provides who may make a Will and in order to validate the contents who signs when and where. The Wills Act does not prescribe content and the inclusion or exclusion of any clause will not validate or invalidate your Will.

Freedom of testation entitles you to disinherit your family but unilaterally you may not vary your obligations to support your spouse (Maintenance of Surviving Spouses Act) and your children. A maintenance claim is paid in preference over heirs and legatees. Whilst there is freedom of testation in South Africa it is not absolute.

A beneficiary named in a Will should not sign as a witness, as he may be disqualified from receiving any benefit from the Will. 'Benefit' is not limited to the nomination as an heir or legatee, but includes nomination as executor, trustee or guardian. The Will however, remains valid.

A Will does not have a sell-by date. It remains operative until it is revoked. It is imperative that your Will be updated on a periodic basis, but especially when there is a change in status: a birth, a death, a marriage ... cohabitation ... a divorce ... a separation.

If the family is unable to locate a deceased's Will, then the estate of that deceased person will be administered as intestate. Ensure your family know where your Will may be located. It is advisable to sign and execute two originals of your Will and let your family or executor store the duplicate original.

Estate planning should not only deal with the complex structures created during your lifetime but should also include the preparation and availability of a 'life-style file' containing important documents which assist in the administration of your estate, including your Will, insurance policies, letters of wishes, title deeds, birth certificates, marriage certificate, living wills, predeceased spouse's Will and liquidation and distribution account and contact details of the important role players in your life: accountant, financial advisor, insurance broker.

Do not make the winding up of your estate a treasure hunt for your family when they can least afford it. A properly drafted Will leaves a legacy of love.

1. Raubenheimer v Raubenheimer and Others (560/2011) (2012) ZASCA 97; 2012 (5) SA 290 (SCA) (1 June 2012)

 94 COVER NOVEMBER 2013

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