Estranged family fighting over your assets

By Isabelle Coetzee

Barely a week after your death your estranged relatives battle one another for ownership of your assets. Those dearest to you receive nothing while your nemesis becomes entitled to the bulk of your wealth. 

This is a train wreck. And, like 70% of the working population who pass away without a will, there’s absolutely nothing you can do about it now.

“As we can’t see into the future it is important to make your will as soon as possible,” says Emile Gerber, chief operating officer of Epoq Legal South Africa, a British export that offers the creation of complex legal documents, including wills, online.

“If you’ve not made your will before your death, those dearest to you might be left in a financial position you never intended. Also, your assets might end up benefitting those you didn’t want to benefit,” Gerber explains.

He points out that South Africans have “freedom of testation”. This  means they can choose who receives their assets, as long as it’s lawful, not too vague, or impossible to perform.

“With a will you can regulate not only how your assets are to be dealt with, who is to get it and when they should get it, but also who should carry out your testamentary wishes,” says Gerber.

“Your last will and testament is therefore one of the most important documents you’ll ever make, and will have a lasting effect on those you leave behind. So, there is never a better time to make your will than now,” he adds.

What can be included in a will?

Since circumstances differ, for example in terms of estate size and number of dependents, each person will have a unique will. Some will include a number of complex clauses, while others will only include a select number of simple clauses.

According to Gerber, some of the following clauses may be included in a will:

  • Revocation: You can revoke any or all earlier wills (or codicils) in a later one. This is usually done to avoid possible conflict between wills resulting in uncertainty about the testator’s real intentions. You don’t have to revoke an earlier will if you don’t want to, especially if it deals with separate assets that are not dealt with in your later will. However, if you don’t specifically revoke an earlier testament it will, after your death, be read together with the latest one. If they conflict with each other the latest one will automatically revoke the earlier will.
  • Nomination of executors: You would need to appoint one or more executors in your will to gather all your assets, pay your estate debts and estate duty, and distribute the balance of your estate to your beneficiaries in accordance with the instructions in your last will. You would normally provide for a replacement executor should your executor become unable to accept the appointment or continue as executor.
  • Nomination of trustees: Where you’ve created a testamentary trust in your will, you would also appoint the trustees who must manage the assets held in the trust for the benefit of the nominated beneficiaries according to the provisions of the trust.
  • Testamentary trust: Where you have minor children, you might want to set up a testamentary trust in your will that will be managed by the trustees you appoint. Here you can determine how the trustees are to manage the assets and how the assets may be used to benefit the minor children until such time that they reach the age you determined for them to inherit their portion of the capital or assets of the trust.
  • Appointment of a guardian: If you have minor children, you will appoint a guardian if both you and the other parent of your minor children should die while they are still minors.
  • Legacies: You can leave a specific item, amount of money, shares, or other assets to specifically named beneficiaries. These gifts are known as legacies and will be paid to the legatees before the rest of the estate is distributed.
  • Residuary estate: In this clause you determine what is to happen to the rest of your estate, after all debts have been settled and all legacies have been paid. There are a multitude of ways to bequeath the residue of your estate. For example, you can bequeath it upon a trust, as an outright gift or make it subject to a condition.
  • Exclusion from community of property and accrual sharing: With a clause such as this you can ensure that the property or income devolving upon the beneficiaries under your will, shall become their own free and unencumbered property irrespective of whether they are married or will marry in community of property. You can also exclude such property from any community of profit and loss or any accrual in terms of the Matrimonial Property Act 88 of 1984. 

Can you create your will independently?

Gerber confirms that there is no legal requirement stating that you must have your will drafted by a professional. You can create your will by yourself.

“However, it would be vital to make sure that the legal requirements for a valid will, such as the way it is signed, are complied with and that the will effectively deals with all the necessary issues,” says Gerber.

“There are several ways in which you can find help to create your will – you can use a paper-based template available from a stationer, a local law firm or various online solutions - some of which are available through reputable providers like banks and insurers,” he says.

“All of these vary in quality, legal validity and suitability to your circumstances,” he adds.

If you choose to make use of a paper-based template it may cost you around R100. If you decide to work through a local law firm it will cost you anything from R500 to a couple thousand rand – depending on the complexity of your will.

According to Werner Pienaar, partner at Ascor Independent Wealth Managers, certain banks and financial institutions offer to draft your will for free, but they then charge you storage fees to keep the original safe.

“It is imperative that you keep the original document safe as it must be submitted to the Master of the High Court when your estate is registered. Speak to your financial advisor, bank or attorney and find out what services they offer in this regard,” says Pienaar.

He also points out that during National Wills Week, an initiative by the Law Society of South Africa, you can have a will drafted for free by one of their participating attorneys.

Can your will be a video?

In South Africa a will must be written by hand or typed on a computer, and it must comply with the formalities stipulated in the Wills Act. 

“Video wills are accepted in certain American states, but not in South Africa. If you do make a video will, back it up with a paper document that complies with all the formalities as the video will not be accepted on its own,” Pienaar explains.

Besides this, he highlights that if your spouse writes your will for you in his or her own handwriting, he or she will be disqualified from receiving any benefit from your will.

“To be safe, nobody who may in any way benefit from a will should write any part of it in their own handwriting,” he adds.

When should you write your will?

Mareli Schoeman, founder and director of M. Schoeman Attorneys, believes you should have already written your will yesterday.

“If you missed that opportunity and you are lucky enough to have this day, then do it today,” she insists. As a widow herself, she has a special interest in assisting clients with preparing wills and administering estates in a compassionate and effective manner.

She points out that it’s important to update your will as life happens. For example, when you get married or divorced, when you have children and/or they reach maturity, or if one of your nominated heirs passes away.

Schoeman explains that the Wills Act 7 of 1953 determines that the following rules must be followed to ensure that you have a valid will:

  1. You should be older than 16. Remember to include your name, date of birth or identity number, and the date you create the will to avoid any confusion. 
  2. You should have the mental capacity to understand what you are doing and the consequences thereof when your write it.
  3. Your will must be in writing.
  4. You must sign on every page of your will, and on the last page, at the end thereof. 
  5. At least 3 people must be present when you sign your will: you and two competent witnesses. Your signature must be made on the will in front of two witnesses, both older than 14. The witnesses must sign the will at the end thereof, in your presence and the presence of each other, to attest thereto that they were present when you signed your will. An heir or the executor must not sign as a witness as they can be disqualified from receiving any benefit in terms of the will.

According to Schoeman, you should keep your will in a safe place. Some advisors will offer a service to keep your will safe and confidential until it is time to use it.

“Wherever and however you choose to keep your will, remember to tell someone you trust where you are keeping it,” she explains.

“It is also a good idea to keep a list of assets and policies and bank accounts and accounts that are paid monthly that can be given to your executor, so that your executor can administer your estate as fast and effectively as possible,” she adds.

Disclaimer: This article has been prepared for information purposes only and does not constitute legal advice, or a legal opinion. The practical application of the provisions of this article will vary depending on the facts of each case. The publication, author of the article and companies or individuals providing commentary cannot be held liable in any way. Parties are advised to seek legal advice where appropriate.

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