November 9, 2020
“Death knocks at all doors alike” (John Dunton 1692)
Sooner or later we must leave our families to face life without us, and of course these are particularly dangerous times for us all.
Make sure that your own affairs are in order now –
- A valid will is the only sure way to protect your loved ones after you are gone.
- If you have an old will, check whether it needs updating or changing.
- Leave a file with all the important information and documents that your estate’s executor will need.
Five mistakes which can invalidate your will
The last thing you want is to leave your loved ones grappling not only with the tragedy and grief of your passing, but also with a bitter feud over the validity of your will. Avoid these mistakes in particular –
- Not complying with all the required formalities when making your will: Although our courts do have a discretion to order the Master of the High Court to accept as valid any document not complying strictly with the various required formalities (the court must be satisfied that the document “was intended to be [your] will or an amendment of [your] will” you will want to spare your loved ones all the delay, cost and risk of dispute involved in a court application.
- Not complying with formalities when changing your will: The same applies if you want to change or revoke your will. In addition, a court can declare your will to be fully or partially revoked if you did anything (such as leaving something written on your will, an action on your part, or another document) that satisfies the court of your intention to revoke the will. Again a scenario to avoid at all costs with a properly-drawn replacement will or codicil.
- Leaving any doubt as to your “testamentary capacity”: Anyone aged sixteen years or more may make a will “unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act”. Although it is up to anyone challenging your capacity to prove that you were mentally incapable at the time, there are grey areas here and our law reports are full of bitterly-fought disputes over the question of testamentary capacity. So if there is any chance at all of that sort of challenge arising ask your lawyer to advise on the best way to leave proof of your capacity at the time of signing.
- Leaving any doubt as to fraud or forgery: All too often our courts have had to decide disputes over whether the signature on a will is genuine or forged, or over allegations of fraud. Again if there is any risk of that happening, get legal advice on how to put the genuineness of your signature, and of the correctness of your will, beyond doubt.
- Leaving any doubt as to coercion or “undue influence”: As with the previous two warnings, this isn’t likely to be a danger for most people, but on the “better safe than sorry” principle don’t risk any chance of someone challenging your will with accusations that you were subjected to some form of duress (threats perhaps, anything that would cause you to act unwillingly or against your better judgment) or undue influence.
If you don’t have an updated will in place contact your attorney now – one of the commonest (and most tragic) mistakes people make is thinking “I’m too busy right now, it can wait”. It can’t!
May 21, 2020
“Death always comes without knocking” (Margaret Atwood)
Particularly in these times of pandemic, deadly infections and uncertainty, no one can ever say with any confidence that we will still be alive tomorrow, or next month, or next year.
Now more than ever having a valid and updated will in place is no luxury to be attended to “when I have the time” or “when I am older”.
The risk is that without a proper will (your “Final Will and Testament”) you die “intestate”, in which event the law and not you decides which of your heirs gets what from your estate. You have forfeited your right to ensure that your loved ones are properly looked after when you are gone. You have lost your right to decide how your assets will be distributed on your death. And you have no say in who will wind up your estate as Executor. Executing a valid will is the only way to avoid all that.
Then – just as importantly – once you have your will done and dusted, avoid the very common mistake of forgetting to update it regularly.
Nine events to trigger an update review
Don’t leave your loved ones struggling with an outdated will. Firstly diarise frequent review dates. Then keep in mind the many changes in circumstances that will require interim review –
- Times of great change in your health risk profile: The current COVID-19 pandemic exposes us all to the threat of a sudden and radical change in our health status, and that (or indeed any new diagnosis or other actual change to your risk profile) calls for an immediate review of your will. Now more than ever it has to be fully up to date.
- Marriage: Have I or any of my heirs married, re-married, changed marital regime (in or out of community of property, with our without accrual), entered into or left a life partnership or the like? Does my will tie in with my marital regime and ante-nuptial contract if any?
- Divorce: Have there been any divorces? This is vital because so many couples leave everything to their spouses. And if for example that applies to you and you divorce, you have only a three month window period within which to change your will. For three months your ex-spouse is effectively disinherited; but if you don’t change your will within that window period your ex-spouse inherits everything.
- Birth or adoption: Have there been any births or adoptions, do you have new children or grandchildren? This is particularly important if your will specifically names all heirs without a catch-all phrase that will include new children/grandchildren.
- Death: Has anyone died and if so must any specific bequests or anything else change?
- Other changes in personal circumstances: Have any of your heirs undergone a relevant change in circumstances, perhaps become more financially vulnerable for whatever reason (serious illness or motor vehicle accident causing disability, loss of bread-winner for example)?
- Changes in assets, liabilities, financial and business structures etc: Have you sold any assets named in your will, or acquired assets that you would like to bequeath specially to a particular heir or that necessitate a re-allocation of bequests? Perhaps existing assets have changed dramatically in value? What about new liabilities, such as perhaps a new bond over a property which will reduce its value to a particular beneficiary?Have you formed or deregistered any trusts or asset-holding structures? Have you started or acquired or sold a business to be earmarked for a particular beneficiary? Do you have any new assets overseas that may call for a separate foreign will?
- Executor, Trustees, Guardians: Is there any need to review your appointments of Executors, Trustees, Guardians?
- Changes in the law: Have there been any changes in relevant laws, either through legislation or new court decisions? Tax laws in particular can change unexpectedly and affect the continued suitability of your estate planning.
How to update your will
If you plan major changes to your will, consider making an entirely new one but if the changes are minor a codicil may suffice. In both cases you need to comply with important legal requirements so professional advice is critical here!
September 20, 2019
“Where there’s a will, I want to be in it” (Anon)
Your will (“Last Will and Testament”) is quite possibly the most important document you will ever sign. Without a properly-executed will you put your loved ones at risk of financial and emotional hardship, you forfeit your right to nominate who administers your deceased estate, and most importantly you forfeit your right to choose who inherits what from you.
But just how wide is your right to choose? Can you leave anything to anyone? Is your freedom to decide limited in any way? Must your executor blindly carry out your last wishes?
Your fundamental right to “freedom of testation”…
For centuries our common (i.e. unwritten) law has recognised “freedom of testation” as a basic principle, subject only to being balanced against a restricted list of specific limitations.
Moreover our courts have confirmed that this freedom is supported by our Constitution. To quote the Supreme Court of Appeal (SCA): “The right to dignity allows the living, and the dying, the peace of mind of knowing that their last wishes would be respected after they have passed away.”
…and the limits
Even as far back as Roman times there were limits to freedom of testation, and these have grown over time to incorporate the following general principles against which your will’s validity can be tested –
- You cannot have anything in your will that is illegal, immoral, or “against public policy”, or impossible to fulfil, or so vague as to be unenforceable.
- Legal obligations for maintenance of dependants and of your “surviving spouse” (where he/she qualifies) will generally take preference over bequests.
- How you were married could well be relevant. Thus if you were married out of community of property with the accrual system, your surviving spouse may have a claim against your estate for half of the combined increase in the value of your separate estates during the marriage (specific rules apply).
- Courts also have a variety of other statutory powers such as the power to alter trust provisions and to remove or modify restrictions on immovable property.
- Pension and retirement fund benefits may not be paid out to your nominee – the fund’s administrators must first identify any dependants with possible claims on them.
- Constitutionality: Your bequests also stand to be tested against our Constitution. Thus in 2010 the SCA removed a discriminatory clause in an educational fund bequest open only to “European girls born of British South African or Dutch South African parents”, commenting that “In the public sphere there can be no question that racially discriminatory testamentary dispositions will not pass constitutional muster” (emphasis added). Similarly in 2006 the High Court struck down provisions in a will limiting a bursary fund to white non-Jewish males.
On the other hand, the SCA in a 2018 judgment upheld a private trust’s provisions benefitting only the deceased’s biological descendants to the exclusion of two adopted grandchildren. “There is much to be said for public trusts being judged more strictly than private trusts”, said the Court, noting that the public nature of the bequests in the earlier judgments was “a determining factor in the weighing up process in those specific cases.” Note that the particular facts of that case also played a part in the Court’s decision, so adopted children and grandchildren might well succeed in different circumstances.
Clearly, there will always be a balancing act in play here because, as we saw above, freedom of testation is itself regarded as a constitutional right.
Critical: A well-drawn and valid will
The last thing your grieving loved ones will need is a long and bitter court battle over whether your will is valid – or over any areas of uncertainty or dispute.
Bear in mind that of necessity the list above is only a brief summary of the legal principles involved – there are many “ifs and buts”, grey areas (such as the balancing act referred to above in regard to the question of constitutionality), and considerations beyond the scope of this article.
That’s why there can be no substitute here for legal advice specific to your circumstances. Have your attorney draw your will for you (or check it if you already have a will). It must be properly drawn, it must correctly and clearly reflect your wishes, it must be validly executed – and it must pass muster when tested as above!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
July 24, 2019
“It is not intended for the Court to make a will for the deceased based on what his intentions may have been” (Quoted in the judgment below)
As a general rule our law holds us to our agreements and statements, whether we express them verbally, electronically or in written form.
But there are exceptions – some things just have to be in writing and signed before the law will recognise them. One of those exceptions is quite possibly the most important document you will ever sign – your “Last Will and Testament”. Ultimately it’s your final gift to your loved ones – a gift that ensures they are properly provided for when (not “if”) you die.
Don’t neglect this or procrastinate – without a will you have forfeited your right to choose who inherits your assets and who is appointed as executor. And it’s equally vital to validly update or replace your will after a significant “life event” (marriage, birth, death, divorce etc) – we’ll consider below the sad case of an accountant who intended to change his will but just never got around to it.
But first, what must you do for your will to be valid?
To be valid, a South African will must comply with a list of formalities. There are several of them and they require strict compliance, so getting specific legal help is a no-brainer here. But in general terms your will should be in writing and signed by you in the presence of two “competent” witnesses.
The question arises whether in this age of electronic contracts and signatures an “electronic will” (perhaps in an email, a video, a Social Media post or the like) might suffice. In short, the answer is almost certainly no, it won’t. The Master of the High Court (who accepts your will as valid or not) needs to see a piece of paper and physical signatures. And the same applies to any subsequent amendments to your will.
An escape route
There is however a possible escape route – our Wills Act provides that a Court may order the Master to accept an otherwise invalid will when satisfied that it was intended by the deceased to be his/her last will. That’s a great tool which has often enabled our courts to avoid situations of “injustice through formality”, but there is still absolutely no safe substitute for a properly-executed will.
As this recent High Court judgment illustrates all too clearly…
The accountant who emailed his “Final will” to his fiancée
- In 2006, a “very meticulous” accountant drew up a written will, properly drawn and formalised. In it he left everything to his then wife, from whom he was divorced in 2011.
- In 2014 he became engaged to another woman with whom he had been in a “romantic relationship”.
- On 4 January 2016 he emailed his new fiancée, under the subject line “Final will”, recording in part that “This serves as my final will and testament … If I die, all my assets and investments go to [my fiancée] … “My life policies must all go to [my fiancée]”.
- Subsequent emails made it clear that both the accountant and his fiancée were aware that there could potentially be disputes regarding the validity of the emailed “will”, and accordingly an “Action” list that the fiancée then sent to the accountant included an action item “Will”. In the end however he never got around to actually making and signing a written will.
- When the accountant died on 14 September 2016, the Master appointed as executor the bank nominated in his 2006 will.
- The fiancée approached the High Court for an order recognising the 2016 email as the true will, alternatively revoking the part of his 2006 will leaving the estate to his ex-wife. Unsurprisingly, the ex-wife opposed this application.
- Firstly, the Court accepted on the facts that the accountant had indeed drafted the email, but it then turned to the second leg of its enquiry – “Whether the deceased intended the disputed Will to be his Last Will and Testament”.
- Commenting that “it is not intended for the Court to make a will for the deceased based on what his intentions may have been”, the Court found that it was “improbable that he would have intended the disputed Will to be his Last Will and Testament”, and that – this is the critical part – his email was “nothing more than an email in which he was assuring the applicant that he will make her a beneficiary of his estate”.
- The end result – the accountant clearly intended to leave his estate to his fiancée. But he never got around to drawing up a formal written will to that effect, so the 2006 will stands, the ex-wife takes all and the fiancée leaves with nothing.
The bottom line – “intention” is not enough!
Whatever you intend should become of your worldly goods, and no matter how you may have recorded your wishes, the only safe way to ensure that they are honoured is to execute a valid written will.
This is a vital document and there are dire consequences to not getting it 100% right so ask your lawyer for help!
September 21, 2018
“A man who dies without a will has lawyers for his heirs” (Anon)
It’s natural not to want to make plans for our own mortality, but we owe it to ourselves and our loved ones to do exactly that, and to do it without delay. Why?
- Sooner or later we all die. No one knows exactly when.
- If you don’t make a will you forfeit your right (and duty) to ensure that your loved ones are properly catered for after your death.
- A professionally-drawn will also greatly reduce the risk of your grieving family having to deal with uncertainty as to your wishes, bitter infighting and expensive litigation.
What happens if you don’t leave a valid will?
If you leave no valid will when you die, our “law of intestacy” applies, with the following consequences –
- Your assets are distributed according to law, not according to your wishes. That could leave your family very vulnerable – see below.
- Your deceased estate is administered by an executor in whose appointment you have had no say. Not ideal – rather protect your loved ones by choosing in your will an executor you can trust to act with integrity and speed.
- Equally, you have no say in who is to be appointed guardian of your minor children, nor trustee of a trust to protect their inheritances (particularly important if you are the last-surviving parent).
- Your childrens’ inheritances will sit in the statutory Guardians Fund until they turn 18 – very much last prize considering past allegations of fraud, corruption and chaotic administration in the Fund.
Who gets what without a will?
Where you are survived by at least one relative, your net assets (everything you own, less your debts and the costs of winding up your estate) are divided up between your heirs in an order of preference (a) dictated by law and (b) dependent on how you are related to your heirs.Firstly, if your spouse and/or your descendants (children, grandchildren etc) survive you, they inherit everything according to set rules (see the “Beware: You could leave your spouse struggling to survive” section below for more).
Things get more complicated if you leave behind neither spouse nor descendants. Your parents, brothers/sisters and other relations all potentially have a look-in. If you’re interested in the details, the DOJ (Department of Justice and Constitutional Development) provides a full breakdown (with some useful practical examples) here.
The article also covers specifics applying to polygamous marriages, marriages in community of property, adopted and illegitimate children – but as always there is no substitute for proper legal advice on your specific situation.
Beware: You could leave your spouse struggling to survive
If you find it difficult to stop procrastinating on making a will, here’s a thought that may help.
Without a will, if your spouse survives you together with children (or other descendants), he or she will, regardless of age or circumstances, inherit only the greater of R250,000 or a “child’s share”. In a nutshell, your spouse will have to split your estate with your descendants and you could be sentencing him or her to a life of financial hardship, all for want of a simple will.
Similarly you may want to make special provision for any of your descendants who are particularly vulnerable – perhaps unable to fend for themselves through illness or handicap.
It boils down to this – make your will now so that it is you who decides who gets what in your particular family circumstances.
A final thought – leave the world a better place
A will isn’t just an essential step in securing your family’s future; it also gives you the freedom to support your favourite good cause with a bequest. Many of our most worthy charities rely heavily on bequests, and you really will be leaving the world a better place for your generosity.
As a bonus, with charitable bequests the Taxman comes to the party, and your heirs could benefit from substantial estate duty and capital gains tax breaks.
For more detail on making a bequest have a look at (to take one example) the Children’s Hospital Trust’s “Leave a Gift in Will” webpage here.
It’s easy – choose your charity, decide on the type and amount of legacy you want to leave, and have your lawyer include it in your will.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
June 14, 2018
“The general rule of our law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has endured” (From a 2010 High Court judgment and still applicable)
One of the more pervasive myths in South Africa is that, if you live together for long enough as “life partners”, you have some form of legal protection because you are in a “common law marriage”.
Not so! Our law has never recognised any such concept, and you could well be left high and dry when your partner dies or leaves you. The problem is that cohabitants have none of the general legal rights and duties to each other that apply to formal marriages and civil unions. The draft Domestic Partnerships Bill, which was published in 2008 and was supposed to remedy this situation, appears to have fallen off our lawmakers’ radar.
So what should you do?
If you don’t want to get formally married or register a civil union (some customary marriages are also recognised), ask your lawyer as soon as you can for advice on –
- Drawing up a full “domestic partnership agreement” (often called a “cohabitation agreement”). Make sure that at the very least it regulates your legal rights and financial arrangements both –
- During your relationship, and
- In the event of separation or death. Under this heading, address questions such as –
- How will your various assets be divided?
- Will you be liable/eligible for maintenance and other financial support?
- Whether there will be any financial adjustment between you. What happens for example if only one of you works? Or if you paid for an extension to your life partner’s house or have been paying the bond?
- Who will take over ongoing liabilities and contracts such as leases, bonds, medical and life policies, monthly accounts and so on?
- Anything else that will need to be regulated in your particular circumstances. This item is of course particularly important if there are children involved.
- Drawing up wills to provide for the survivor on death. Without a will, our laws of “intestacy” apply and the surviving partner has no right to inherit nor to claim maintenance from the deceased estate. Have your will professionally drafted; amateur drafting has caused many bitter disputes and litigation between potential heirs.
The risk of doing nothing
If you don’t have such an agreement and wills in place, you will have no rights of inheritance on death, and will walk away from a broken relationship with nothing but whatever you can prove to be your own separate assets. Our law reports are full of tragic cases of long-term life partners left destitute and homeless after decades of cohabitation.
If you are faced with that bleak prospect, ask your lawyer for advice on whether –
- There are any specific rights applicable to you. In a few limited cases our laws have already addressed this issue – such as in regard to child maintenance, medical aid, income tax, estate duty, pension funds, protection from domestic violence and the like.
- Where our laws have not yet addressed the issue of equal rights for cohabitants you may be able to convince a court to declare them unconstitutional, but that’s a long and expensive road.
- You may also be able to prove the existence of a “universal partnership”. That can be difficult to achieve in practice, and even if you succeed there is no guarantee of anything like a 50/50 split.
Avoid all that risk, cost, delay and dispute with a comprehensive life partnership/cohabitation agreement!
June 14, 2018
Have you joined, or been tempted to join in, the “Bitcoin frenzy”? If so, read on.
Bitcoin and Ethereum are probably the best known of the cryptocurrencies, but (as at 10 April 2018) there were over 1,565 of them, and that number is growing.
Whether Bitcoin and its cousins are good investments is a matter for you and your financial advisers to puzzle over but let’s have a look at a few legal aspects –
Expect grey areas and big changes
Governments, Tax Authorities, and Central Banks around the world are struggling to get to grips with cryptocurrencies and how to treat them. Some countries allow them; some have banned or restricted them. Expect ongoing uncertainty and a lot of future change in these official positions, including attempts to regulate alternative currencies in general.
Are cryptocurrencies legal?
The short answer seems to be yes, there’s nothing to stop you buying, holding, using or selling them. The Reserve Bank’s official position is that they can be traded and used as “a medium of exchange, a unit of account and/or a store of value”, but they aren’t “legal tender” (“bank notes and coins in RSA which can be legally offered in payment of an obligation and that a creditor is obliged to accept”). What that means is that Joe Plumber is free to accept payment from you in Bitcoin if he wants to. He just can’t insist on it, nor can you.
SARS’ view (see “Income Tax and VAT” below) is probably going to be your greater area of concern for the moment.
What if you need help from a court?
The Reserve Bank warns that you acquire cryptocurrencies at your own risk and that you “have no recourse to South African authorities”.
What that means in practice remains to be seen (would SAPS really refuse to investigate a theft of Bitcoin?), and whilst there is no precedent to confirm that our courts will indeed help you if you have to sue over, for example, a Bitcoin transaction gone wrong, the majority view seems to be that they will.
Must you pay Income Tax and register for VAT?
From the horse’s mouth so to speak, this is some of what SARS says (all highlighting is ours) –
- It will “continue to apply normal income tax rules to cryptocurrencies and will expect affected taxpayers to declare cryptocurrency gains or losses as part of their taxable income.”
- “The onus is on taxpayers to declare all cryptocurrency-related taxable income in the tax year in which it is received or accrued. Failure to do so could result in interest and penalties.”
- “…cryptocurrencies are not regarded by SARS as a currency for income tax purposes or Capital Gains Tax (CGT). Instead, cryptocurrencies are regarded by SARS as assets of an intangible nature.”
- “Determination of whether an accrual or receipt is revenue or capital in nature is tested under existing jurisprudence (of which there is no shortage).”
- “Taxpayers are also entitled to claim expenses associated with cryptocurrency accruals or receipts, provided such expenditure is incurred in the production of the taxpayer’s income and for purposes of trade. Base cost adjustments can also be made if falling within the CGT paradigm.”
- “…VAT treatment of cryptocurrencies will be reviewed. Pending policy clarity in this regard, SARS will not require VAT registration as a vendor for purposes of the supply of cryptocurrencies.”
There’s more, and you don’t want to take any chances here, so consult an expert in need.
The Endgame: Leaving Bitcoin in your Will
Your cryptocurrency holdings are assets in your estate and you will want your heirs to get them. Your executor must deal with them together with all your other assets (both physical and digital).
Remember however that your holdings will be lost forever if your heirs/executors don’t know about them or can’t access your digital cryptocurrency wallet. They will need all your digital keys – both “public” (wallet address) and “private”.
In whatever manner you plan to leave your heirs/executor a record of these keys on your death, avoid disaster with these tips –
- Do it now – no one knows when they’ll die.
- Do it securely – anyone with your private key can clear your wallet out, and criminals know that.
March 12, 2018
If you are inheriting from someone who passed away on or after 1 January 2018, don’t blame the estate’s executor for one substantially-increased cost you may notice – Master’s Office fees.
They are calculated on the value of the deceased estate and were long overdue for an increase, going up sharply from the old maximum of R600 to a new maximum of R7,000 (which will apply to any estate of R3.6m or more).
See the table below for details –
October 18, 2017
If you don’t want to be kept artificially alive – without your consent and perhaps in pain and distress – long after your medical condition becomes hopeless, you need to communicate your decision now to the doctors, hospitals and loved ones who will be caring for you at the end.
Incapacitation can strike without warning and at any time, so prioritise this whilst you are still mentally and physically competent to express your wishes.
Living Will v Advance Directive: What’s the difference?
Both are “advance health care directives”, expressions of your wishes for future care. Both become effective only when you lose the ability to communicate for yourself. They are a gift to your loved ones and medical carers, helping them to make the hard decisions they will need to make in order to spare you the nightmare of suffering while your life is pointlessly prolonged.
An Advance Directive differs from a Living Will in that it enables you, in addition to giving detailed instructions on what medical treatment you do and do not consent to in various scenarios, to also appoint a ‘Medical Proxy” (normally a close family member) who will make medical decisions for you. Appoint both a Primary and an Alternate proxy in case your Primary choice is unable or unwilling to act at the critical time.
Ask your doctor for guidance if you are unsure about what to do here, and for advice on the implications of the specific advance directions you are giving. You might for example decide that you want aggressive intervention in some eventualities but not in others.
Are these advance health care directives recognised by law?
We need to draw a clear distinction here. Euthanasia and “assisted suicide” are still generally unlawful in South Africa, quite apart from conflicting with many people’s moral/cultural/religious beliefs.
But whereas euthanasia and assisted suicide are said to involve an active intervention to terminate life, typical advance health care directives merely express your wish that when the time comes you be allowed to die naturally and with dignity, in other words that nature be allowed to take its course. We must all decide for ourselves the extent to which we are comfortable with that.
But will our courts recognise the legal enforceability of these directives? In 2016 the Supreme Court of Appeal, whilst finding that euthanasia and assisted suicide remain unlawful, made several comments that perhaps bode well for the acceptance of advance directives. So whilst their legal enforceability cannot be guaranteed until our courts rule specifically and definitively on the matter, the signs certainly seem more positive than negative.
In any event, in practice you will greatly increase the chances of your wishes being honoured at the end if you have confirmed beforehand with your loved ones and medical carers that they will do so.
You still need a “Will”!
Note that Living Wills and Advance Directives are very different to a “Last Will and Testament”, in which you provide for distribution of your assets to your heirs after you die. You need both.
In closing, and this is important …
- Make sure that everyone knows how to find your Advance Directive or Living Will in a hurry. Ideally lodge signed originals with all the role-players.
- Diarise to review your directions at least annually, and if you change your mind about anything, destroy all the old originals and replace them with new originals specifically revoking all previous directions.
September 13, 2017
“Let’s choose executors and talk of wills” (Shakespeare)“Let’s choose executors and talk of wills” (Shakespeare)
If you haven’t made your will yet, get it done now. Why is that so important and how should you go about it?
To answer that let’s debunk a few of the more pervasive myths and misconceptions around those questions –
“I’m too young to need a will”
Of course the older you get, the greater your chance of dying from illness or disease. But conversely, the younger you are the higher your risk of sudden violent death. For example our road fatality stats (amongst the highest in the world) show that 80 percent of deaths are in the 19 to 34 year old age group. No matter your age and no matter your health status, you could die today. Or tomorrow. No one (least of all you) knows for sure.
And so to this related myth …
“I’m too busy right now, it can wait”
The more frantically busy we are (and that’s most of us in today’s world) the more tempting it is to postpone this one. It’s a hassle, you have other priorities, and besides who wants to contemplate their own mortality? But of course “Death knocks at all doors”, often without warning. And the hassle you save yourself today is just more hassle for your grieving loved ones to have to deal with tomorrow.
“It’s OK to die without a will”
No it’s not. A will is the only way to ensure that your loved ones are looked after properly after you are gone. It’s the only way to control how your estate is divided and who divides it for you.
Without a will you die “intestate” and the law – not you – determines who gets what. You could be inadvertently condemning your spouse to a life of trying to survive on only a “child’s share” of your estate. You have no say in who will be appointed executor of your estate, or guardian of your children, or trustee of their trust if they are under age or unable to manage their own affairs. Your childrens’ inheritances will sit in the Guardians Fund until they turn 18. If you aren’t formally married but have a life partner, he or she may end up in a bitter dispute with your family over rights of inheritance. There are no advantages to dying intestate, only disadvantages – big ones.
“I’m single and have no assets, so a will is pointless”
Firstly, you will have some assets – a bank account perhaps, or a car, or monies in your employer’s pension fund, or perhaps your estate will have a claim on the Road Accident Fund. Even if you have no spouse/life partner/children to worry about, you will still leave loved ones behind – parents perhaps, or siblings. Whatever the case, someone close to you will have to be involved in winding up your estate and you should leave a will to make the process less stressful for them.
“My spouse already holds my Power of Attorney, that’s all he/she needs”
Powers of attorney lapse on your death and from then on only your executor, after being formally appointed by the Master of the High Court, can deal with your estate. Any powers you may have given your heirs – for example to draw money to live on from your bank account, or to run your business, or to rent out your house – fall away when you die.
“It’s easy to draw a will, I can do it myself”
There is no legal requirement for a professional to draw your will, but before you buy a template will or copy someone else’s, consider these common pitfalls –
- Your will must comply with legal formalities to be valid. If it doesn’t pass muster for any reason, your heirs will have to make an expensive application to the High Court to have it validated.
- Unless the terms of your will are crystal clear, you could ignite a bitter family feud over what your wishes really were, and that’s the last thing your grieving loved ones need to be dealing with in their time of distress. Our law reports are filled with cases caused by imprecision, ambiguity and vagueness, and sometimes there is just no substitute for the legal terminology and the “Latin bits” – unless you fully understand them, don’t go there alone.
- Your marital status, marital regime and ante-nuptial contract (if you have one) need to be taken into account when drawing your will, and there are grey areas here which are best left to a professional.
- If you have foreign assets, you may need a foreign will as well as a local one, but there’s “no one-size fits all” answer – specialised advice is essential.
- The structure of your will, and upfront estate/tax planning, will reduce unnecessary cost and delay – another issue beyond the average layperson.
- A last point – not strictly part of the process of drawing the will but still vitally important – is to leave your heirs with ready access to funds whilst the estate is wound up. All your bank accounts and the like are automatically frozen on death so ensure your heirs have their own bank accounts, nominate them as beneficiaries of life policies etc.
“I made a will years ago, that’ll do the job”
Bad idea. Life events (marriage, divorce, birth, death etc) and a whole host of other factors (like new laws and changes in your financial and business structures) all require review. So diarise to revisit your will regularly, at least once a year.
In closing, don’t confuse this sort of “will”, which only applies after you die, with a “Living Will” (or its close cousin an “Advance Directive”), both of which only apply before you die.
We’ll discuss whether you need a Living Will or Advance Directive in next month’s issue.