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Estate planning – Common mistakes in the drafting of a Will

Published

2021

Tue

09

Nov

Estate planning is often something most people avoid – perhaps to avoid dealing with the thought of one’s death. However, estate planning is a vital part of a good financial plan because it entails the legacy you would like to leave through your Will.

 

The estate planning process generally starts with the drafting of your Will. Shockingly, recent statistics obtained from the offices of the Master of the High Court of South Africa shows that less than 15% of South Africans die with a Will.

 

In a case where there is a Will in place, we often find that the drafting mistakes can either render it impractical for certain provisions to be carried out, or worse still, for the laws of Intestacy to apply.  This can lead to unintended consequences, to the detriment of loved ones left behind.

 

Mistakes to avoid when drafting of your Will

 

Here are some common mistakes you can avoid when drafting a Will:

  • The wording used in a Will is vague, unclear or ambiguous.
  • The Will does not contain a residue clause. This can result in legacies being abated, meaning the beneficiaries may receive a lot less than what you intended them to receive.
  • No substitution is mentioned in the Will. For example, if a beneficiary predeceases you or is disqualified from inheriting, the Will is silent on who the inheritance will pass to in this event. 
  • Some Wills contain provisions where cash is specially bequeathed. Therefore, no cash is available in the residue to cater for liabilities, estate administration expenses and taxes, resulting in a cash shortfall in the estate.
  • An executor is not nominated in the drafted Will. This means that the Master of the High Court will appoint an executor which may be someone not of your choice.
  • Not updating a Will frequently when events such as marriage, death of a family member, divorce or having a child takes place, can result in your intentions not being fulfilled.
  • There is no nomination of guardian/s in respect of minor children in a Will.

 

Keeping your original Will in safe custody!

 

The Master of the High Court can only register and accept Wills that comply with all the legal formalities in terms of the Wills Act and in terms Law of Succession.

In a case where the original Will is lost or destroyed and only a copy of the original can be found, the Master of the High Court can only accept such a copy, if the application is made to the High Court in terms of Sec 2(3) of the Wills Act to accept the copy of the Will as the last Will and testament for purposes of the administration of a deceased estate.

Any beneficiary entitled to benefit according to the Will or an Executor nominated, can approach the court for an order directing the Master of the High Court to accept the Will. The Court need to be satisfied that the copy of the Will is valid and represent the intentions of the deceased before they can approve the copy of the Will to be the Last Will and Testament of the deceased. If not, the estate could be administered according the Law of Intestate Succession Act 81 of 1987.

In the estate planning, Will drafting and the safe custody of your Will, one needs to be familiar with the various pieces of legislation. It is therefore important to deal with a specialist to avoid the pitfalls and challenges.

 

 

 
Source: By Adv Anneke le Roux, Fiduciary Specialist, PPS Fiduciary Services
 
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