Your will should be adjusted when there are changes in your personal circumstances. You also need to make sure your intentions are clear, because you aren’t going to be around to clarify them.
Practical tips when drafting your will:
Keep the wording as clear and simple as possible.
The division of your assets should be practical, fair and reasonable.
A well-planned will helps to eliminate potential disputes between heirs.
Make provision through a testamentary trust for the protection of heirs such as minors or squanderers.
Make provision for potential claims, such as a maintenance claim in terms of a court order and/or in terms of the Maintenance of Surviving Spouses Act. A testamentary trust is a good option and instrument to use in this case.
In the case of a father, son or nephew having the same names, heirs must be clearly identified with identity numbers.
Where couples are married in community of property, each is entitled to one half-share of the joint estate so it would be advisable to have a joint will drawn up.
Where married out of community of property, they can choose whether they would like separate or joint wills to be drawn up.
Be mindful of the fact that certain monies, such as annuities and pension funds, do not usually form part of an estate as the board of trustees pays these separately. The same principles apply to group insurance and policies with nominated beneficiaries.
When updating your will, ensure that it cancels all previous wills, that it is signed correctly and dated properly.
Nominate a trustee(s) of the testamentary trust to look after the assets of minor heirs and so on.
Nominate a legal guardian(s) to take care of (the person of) minor children. There is a difference between an appointment in respect of the person (care) and assets (finances) of a minor.
What not to include in your will:
As a will is usually read some time after your death, making an organ-donor specification in your will won’t do much good. Preferably convey such wishes to your next of kin, as they would have to authorise it.
The same applies to funeral arrangements. The contents of the will are often made known only after your funeral.
Avoid attaching annexures to your will, as this presents potential risks. The Wills Act has strict requirements that may invalidate the annexures and your will. Rather include these instructions in your will.
Don’t try to describe all of your assets in your will. The reason is that you might end up omitting assets acquired later. You need describe only those assets that you would like bequeathed to specific heirs, and divide the rest of your estate in specific ratios to specific heirs.
Avoid inflexible instructions. An instruction to sell all assets can lead to losses if market conditions are poor at that time. Rather leave these decisions to your executor and heirs.
Be careful about ambiguous wording:
For example, John writes in his will: “I bequeath my boat to my son and the remainder of my estate to my daughter.” According to the daughter, the trailer on which the boat stands is hers.
John bequeaths all his cash to his daughter Penny, but does not specify exactly what this cash is. Is it the notes and coins that John had in his wallet on the day he died? Does it include the fixed deposit at the bank, or perhaps the returns of the insurance policy? Or is it simply the balance in his cheque account?
Make detailed references. For instance, do the contents of the garage also include the car in the garage or is it only the tools? Do moveable assets imply the car, firearms and furniture or do they also include the policies and investments?
The word “policy” can be linked to both insurance and investments. Specify whether investment policies are included.
Supposing the testator nominated his two sons as the beneficiaries of his two policies of about R50 000 each. In his will he bequeathed cash legacies of R50 000 to each of the same two sons, but meant to refer to the policies, not any additional amounts. In this case, add “the bequest to them will lapse if policies accrue directly to them”.
Berrie Botha is chief executive of Sanlam wills and trusts