Don’t take your will lightly

PLAY SAFE: IT’S AN IMPORTANT DOCUMENT, HAVE IT PREPARED BY A SPECIALIST

A properly drafted will can be a gift of love, a poorly drafted one can divide a family.

Apart from the requirements for a will to be validly executed there are many key aspects that can be taken care of in a properly drafted will. A will should be seen as the spearhead of your estate planning.

A properly drafted will becomes a gift of love; a poorly drafted will can create family division.

Offshore assets

South Africans are increasingly spreading their wings. The probate formalities of different jurisdictions and forced heirship rules in some countries require careful consideration.

In many instances it will be better to have separate wills for different jurisdictions as opposed to a South African will that will regulate the distribution of your worldwide assets.

Maintenance

Our divorce rate is unfortunately high. Maintenance commitments do not end upon your death.

The divorced spouse who may be entitled to maintenance could potentially claim a large sum for future maintenance based on her (mostly female!) life expectancy. A special provision can be made for any such maintenance with a special testamentary trust provision.

Joint estates

Many South Africans are married in community of property. One spouse can therefore not bequeath an asset of the joint estate to someone other than the other spouse unless certain special provisions are made.

Agricultural land

Ownership of agricultural land can also present a problem due to the Sub-Division of Agricultural Land Act.

A farm can therefore currently not be bequeathed to the three sons of the farmer.

A special provision can be made in the will using a testamentary trust to address this problem.

Business interests

Many family members in business together do not have formal buyand sell agreements.

The will can serve as an important fail-safe document.

The right of first refusal in respect of your interest in the business, the valuation thereof and the payment of the consideration for acquiring your share can be stipulated.

Minor children

Your children may be minor. Providing for them using a testamentary trust and stipulating at what age they may inherit the capital should also be considered.

You may also nominate a guardian for any minor children failing a natural guardian.

Appointment Of An Executor And Trustee

The appointment of your executor, trustee of any testamentary trust and guardian of any minor children requires careful thought.

Special Wishes

The will can also serve as a record of your burial wishes.

Formalities

The will must be signed at the end thereof by the testator/trix in the presence of two competent witnesses (not related or nominated as beneficiaries/office bearers). Where the will consists of more than one page, each page must be signed by the testator/trix.

The witnesses no longer have to sign the additional pages in terms of the relevant legislation. The writer however prefers the signing of all pages by the testator/trix and the witnesses.

The will is an important document. Make sure that it is prepared by a specialist.

For anyone who believes in reincarnation, the will is easy. Just leave everything to yourself.

Nico Botha FPSA® is a Member of the Fiduciary Institute of Southern Africa & CEO of ST&T Trustees