Five common problems to avoid when drafting your Will

There are various administrative difficulties that can occur during the drafting of a Will should one not be aware of these pitfalls and can then cause major complications during the estate administration one day. These are easily avoided, and the best plan is to have your Will drafted by a professional. The following five problems can occur relatively easily and should be avoided.

1. Not having valid witnesses to your Will

Your Will has to be signed in the presence of two or more competent witnesses, who must be present simultaneously at the time of your signing of the Will. If your Will consists of more than one page, each page needs to be signed by you and your witnesses at the end of that page. Witnesses must also be 14 years of age or older, must be mentally competent to act in that capacity and cannot be beneficiaries to your estate. If they are both a witness and beneficiary they will automatically be disqualified from inheriting.

2. Not updating your Will when your life circumstances change

Reviewing your Will regularly is essential and if something drastic changes in your life, such as getting divorced, you need to update your Will accordingly. To illustrate the importance an example with regards to the effect of a divorce on your Will is now explained. At the time that you are getting divorced your spouse may be listed as a beneficiary in your existing Will. An individual is granted a 3-month period from the date at which the divorce order is granted to update their Will. In the event that the testator passes away within this 3 month period, the previous spouse will be regarded as if he or she had died prior to the date of dissolution of the marriage which means that they will not benefit from the estate. However, if the Will is not updated within the 3 month period, it will be assumed that the Testator was still of the intention to have their previous spouse benefit from their estate.

3. Specifically Bequeathing more than you Actually have

When the executor distributes the estate, there is a hierarchy to be followed in that administration costs and liabilities are settled first (which would include estate duty and other taxes). Thereafter the distribution to beneficiaries can be attended to, with the special bequests (whether an asset or cash) to be attended to first, with rest and residue only being applicable and distributable if there is sufficient net assets left after the administration costs, liabilities and all bequests have been paid. If the administration costs and liabilities exceed the amount available in the rest and residue of the estate, then the executor will be forced to ‘abate’ (proportionately reduce) the value of the specifically bequeathed assets. The result of the abatement will be that each beneficiary entitled to an asset by way of a special bequest will have to contribute a pro rata share of the value of the assets received (or accept a reduced amount of cash if a cash bequest) to receive the asset, they are entitled to. There is a specific calculation method set out by law dictating how this calculation must be attended to, to ensure it is fair to all. The funds contributed to the estate are then utilised to settle all the administration costs and liabilities for which there was insufficient rest and residue with rest and residue beneficiaries receiving no inheritance. This means that proper estate planning at the time of drafting of your Will and regular review if circumstances change is absolutely cardinal.

4. Not Listing Names of Beneficiaries Correctly

When listing beneficiaries in the Will, they should be listed as they appear in the relevant beneficiary’s identity document – being their full names and, if possible, their ID or current and valid passport numbers. The reason for this is simply that, where the name in the Will and/or the identity document do not correspond, the executor will have to provide confirmation to the Master that the person listed in the Will and the person referred to in the identity document is the same person after they have done a due diligence to actually confirm this. A Will is a professional, legal document and full and complete details and correct information is therefore of the utmost importance.

5. Referring to a Group / Class of People instead of Listing them Separately

Where a class of people are referred to in a Will instead of listing them by name it can lead to administrative problems in that a Next-of-Kin Affidavit would have to be completed and submitted confirming the individuals who make up the class of people. To illustrate - if for example - you want to leave R5 million in equal shares to your grandchildren and refer to the ‘group’ instead of listing all your grandchildren by name, a Next-of-Kin Affidavit would have to be lodged proving who they are. This is required by the Master to prove that every grandchild is in fact receiving its benefit in terms of the Will and is the only way for the Master to confirm that the distribution is correct and fair simply due to the Will not mentioning them by name. Not an impossibility to do but leading to additional administration and investigations of who the individuals are making up the class which could be avoided if they had been named in the Will.

The above listed problems are only a few of many potential problems that could occur, and it should be clear that there is a benefit to making sure thorough estate planning is done and your Will drafted. These types of issues are also easy to avoid with the assistance of a professional when drafting your will, as they are equipped and skilled to identify and avoid these problems.

Author:
Anica Ungerer–De Groot, Director