5 tips for an expertly drafted will

Contemplating death is not something many people do voluntarily, but doing so by drafting your will can give you peace of mind. Knowing your estate is in order and that your family will not be left destitute should something happen to you will let you live life with more freedom and less anxiety.

Every September, South Africa observes National Wills Week and Investec hosted a webinar for staff. During the informative discussion, estate planning experts Tamryn De Villiers and Marteen Michau from Fidelis Vox, shared important insights about the importance of having a will and offered important tips to consider when drafting a will.

Why you need a will

South Africans have freedom of testation, which means we have the power to bequeath our assets to whomever we wish, and a comprehensive will makes that process a lot simpler. 

An expertly drafted will ensure that everyone you leave behind, including those who are dependent on you, will get their share of the assets from your estate to maintain their quality of life.

On the other hand, a poorly drafted will can often prove unenforceable, which could lead to problems with administering the estate, delays in executing your wishes, and additional unnecessary costs that erode the value of your estate.

In the absence of a will, your estate will be administered in terms of the Interstate Succession Act, which dictates how your assets are divided between your living relatives, which may not align with your wishes. 

In addition, no will means you have not appointed an executor. Your family will need to find an executor, negotiate fees, and the master of the court may require a bond of security from them, which makes the process more cumbersome and costly.

To ensure that the assets and resources you worked so hard to accumulate are distributed according to your wishes so you can leave a lasting legacy for your surviving heirs, consider these 5 tips for an expertly drafted will.

1. Make sure your will is valid

The person who makes the will and two witnesses must sign in full (no initials) on every page at the bottom and at the back. It is vitally important that the testator – the person who made the will – signs with the witnesses in their presence. The witnesses must then also sign the will.

The other critical element is dating the will when signing. The date indicates that the document represents your latest will and, as such, revokes all previous wills. The date would also cover aspects such as which spouse is referred to in the will based on the timelines if there were multiple marriages.

And finally, a person can only create a will if they are of sound mind and have the mental capability at that time.

2. Carefully consider guardian nominations

Nominating a guardian is very important if you have minor children. In South African law, the biological parents are the natural guardians. Your surviving spouse or ex-spouse following a divorce, will remain the legal guardian failing you. However, in instances where both parents pass away, then your nomination of a guardian will assume the role.

As such, selecting guardians for your children will likely be one of the most important decisions you make in your lifetime. It is imperative to appoint someone who will raise your children in a similar way to you and will respect your wishes in how to raise them.

An important practical consideration is discussing your intention to nominate the person as a guardian to see if they are willing to take on the role.

It is also prudent to specify a failing guardian – someone who can care for your children should the first nominated guardian become unable or is unwilling to fulfil the role for whatever reason.

Without a nominated guardian in your will, the person who will take guardianship of your minor children in the event that both you and your spouse pass away will need to apply to the court, which complicates and delays the process and incurs additional costs.

3. Create a letter of wishes

Draft a letter of wishes for the guardian to accompany a will. While this document is not enforceable by a court of law, it offers insightful guidelines that help guardians understand your wants and wishes for how you want your children raised in your absence.

For example, a letter of wishes can stipulate that you never want your kids separated from their siblings, that they should attend the same school, or that they should never go to a boarding house.

You can draw up multiple letters of wishes, addressing them to executors to inform how you want them to deal with your assets. You can also write a letter to trustees if you have a trust in place, providing more details about how you want them to use the assets to benefit your beneficiaries.

4. Specify a fund to manage an inheritance

Specifying in your will that you want to allocate your assets to a testamentary trust is a prudent step to ensure that trustees look after the funds from your estate and take decisions in the best interest of your minor beneficiaries until they reach an age of majority, which is 18 in South Africa.

A testamentary trust also allows you to bequeath your assets to your beneficiaries when they are older, as many people feel that someone who is 18 still lacks the maturity to make sound financial decisions when they receive a windfall. 

Your will can stipulate any age. Common options include 21, 25 and even 30. Some people opt to pay out tranches at 21, 25, and the last portion at 30.

Your will will contain clauses on how trustees should deal with the funds, and then you can also nominate who you would like to serve as a trustee of the testamentary trust.

A testamentary trust can be discretionary or bevin. A bevin trust has vested rights for the beneficiaries, as the assets are not bequeathed to the trustees to hold until a stipulated age, but rather bequeathed to the beneficiary.

Without allocating assets to a testamentary trust in your will, the High Court, which is regarded as the main guardian of all minors in South Africa, will place assets in a guardian's fund. 

However, guardian's fund are not ideal as they are inflexible and typically do not release money before the minors reach the age of majority. Moreover, guardians and beneficiaries have little control over how the assets are invested in a guardian's fund, which can yield poor returns.

5. Keep your will up to date

A prudent guideline is to revisit and update your will every five years because circumstances around finances, family and even friends constantly change, and a lot can happen in your life during that time.

We tend to think about a will as purely a legal document, but it actually needs to represent the nuance of your life at that different stages. As such, it is important for people to consider these changes, especially when it comes to parenting and minors.

Ensure that the people you want to care for your children in the event that you're no longer here are people you still know and trust, and that the relationship is solid enough that you can trust them to fulfil their guardianship role.

In this regard, should a nominated guardian pass away or leave the country, which is becoming more pertinent given South Africa's rising emigration rate, you must update your will to nominate someone else.

Another important time to revisit your will is following a divorce. Current legislation gives you three months after a divorce to amend your will. If you pass away in those three months, the master's office in the court will deem that it was not your intention for your ex-spouse to inherit your estate. However, if you don't amend your will in those three months and you pass away, the court will assume that it was your intention that your ex-spouse still inherits whatever you bequeathed to them in your will.