“We used to terrorize our babysitters when I was little, except for my grandfather because he used to read to us from his will” (comic Janine Ditullio)

Whether you are young or old, healthy or ailing, wealthy or not-so-wealthy, married or single – you must have a will.

Dying “intestate” (i.e. without leaving a valid will) means your loved ones must deal with a whole series of legal and financial risks just when they are least able to cope with any additional trauma.

Only by leaving a valid will can you protect your loved ones properly –

  1. Their financial security is at risk if you die without a will because then it is the “law of intestate succession” – and not you – that specifies who inherits what.  You could be condemning someone vulnerable to a life of hardship and distress – for example you could unwittingly leave your spouse trying to survive on only a “child’s share” of your estate.
  1. It is the only way you get to choose your executor.  You need someone you can trust to wind up your estate with independence, competence and a minimum of delay. Choose well – this is a specialised function carrying significant responsibility.
  1. Similarly it is in your will that you can nominate a suitable guardian for your minor children.  Ensure that their money is properly protected in a testamentary trust (the alternative, which you really don’t want, is for it to languish in the Guardian’s Fund).
  1. Don’t forget to relieve your family of the burden of deciding how to dispose of your mortal remains – specify in your will whether you want to be cremated or buried.

Who should make a will?  And when?

It’s never a happy thought, but we are all going to die sooner or later.  And even the youngest and healthiest of us could, as the old saying goes, be “run over by a bus” today, or tomorrow, or next Wednesday.  We know death will come for us, we just don’t know when.

None of us can afford to procrastinate – make your will now. Today.

How should you draw your will?  Doing it the right way

“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign.”  (From a 2012 Supreme Court of Appeal judgment)

There is just no substitute for professional advice and assistance here.  To be valid, your will must comply with several legal requirements, including strict rules on signature and witnessing.

But beyond that it should also be concise and unambiguous.  A sloppily drafted or executed will (and template wills are particularly risky here for the uninformed) may be outright invalid.  Even a technically-valid will can be a recipe for disaster if it doesn’t clearly and simply address your particular needs and wishes, risking expensive and distressing litigation, loss of protection for your children, tax inefficiency because of poor estate planning – the list goes on.

Our law reports are replete with bitter and costly family disputes which could have been avoided by better drafting of the disputed wills, so don’t be tempted to take shortcuts; if things go wrong it is your loved ones who will pay the price.

What now? 2 more essentials

So you have your valid will in place, properly drawn and executed.  What’s next?

  1. Safekeeping:  Your will should be kept somewhere safe.  Tell your heirs where it is and who you have nominated as executor.
  1. Review:  This is vital – circumstances change, and you should diarise regular reviews of your will to cater for life events like marriage, divorce, deaths, births, retirement etc. Take full advice again – you can only change your will with a valid “codicil” (amendment or supplement to an existing will).

Please contact one of our Fiduciary Attorneys for assistance.

Email: info@lhtc.co.za