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Drafting a will? Here's how not to do it

Oct 26 2019 18:45
Compiled by Carin Smith

It's easy to make mistakes when working on estate planning - and these can end up having devastating consequences for those left behind. Willie Fourie, head of estate and trust services at PSG Wealth, discusses eight typical errors and how to avoid them.

Misleading wording

A misunderstanding about the wording in your will can result in the opposite of what was intended.

If the executor of the estate and heirs to the estate have conflicting views about a will's provisions, they will look to the Master of the High Court of South Africa for a decisive interpretation of any contentious clauses.  

Not choosing the executor with care

Using friends or family as executors should really be avoided due to the complex nature of winding up estates.

"A trusted professional, such as an estate practitioner or lawyer is often better placed due to their understanding of the process. As wills must be carefully worded to avoid misinterpretation, well-informed executors play a large role," says Fourie.

Selecting the wrong witness

Getting an heir to sign as a witness on your will automatically disqualifies them from inheriting from your estate.

Witnesses may not be beneficiaries of any kind.

Lacking knowledge on legal heirs

Nominating your favourite friend over your estranged kin may become null and void depending on what is seen to be your duty by the court.

Generally, there are three considerations here that can contest freedom of testation, in other words allowing you to decide what you like in your will.

These are claims for maintenance from dependents, or a surviving spouse, or claims in terms of the accrual system created by the Matrimonial Property Act.

Doing it yourself

Drafting a will without professional assistance can actually do the opposite of protecting your assets or ensuring your estate reaches those you want or need it to, warns Fourie.

He suggests including your estate planning in your financial planning.

An overly complex structure

Creating a complex structure within your estate, such as a "usufruct" (temporary right of use) in favour of a surviving spouse, is a common mistake, in his view.

In this case, the word "usufruct" is often mistakenly used where a right to occupy a property (the legal term is habitatio) is granted to another person.

If the intention is that the person may only live in the property themselves but may not live somewhere else and rent it out, it is a lesser limited right than a "usufruct".

Failing to update it

It won't matter what you want if it's not in writing and failing to make updates to your will when your circumstances change is a common mistake.

The most recently dated version of your will is the one that is valid, so if you forget to update your beneficiaries after you get married or divorced, or someone passes away, your wishes might go amiss.

Putting it off

The worst error of all is not having a will altogether, according to Fourie.

"Far too many people die intestate where your possessions are then divided in terms of a prescribed formula as contained in the Intestate Succession Act," he says.

psg  |  wills  |  money
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