What to consider

16 Sep 2019 10:29 am by John de Villiers

Matters to consider when drafting a will

The most important reason for having a will is to ensure that the wishes and instructions of a testator regarding his estate are properly carried out after his death.  Many of us will not leave behind complex or complicated estates, or even estates of high monetary value.  This does not alter the fact that the drafters of our wills need to fully understand what our intentions and wishes are, and to have the required legal knowledge, skill and experience in order to express them in clear and understandable language in a valid, legally binding document. This is where the attorney steps in.

To make the attorney’s task easier, a testator should, depending on the circumstances, be able to provide information about, and/or have given some thought to the following aspects of his estate and intentions:

  1. His personal details i.e. name, identity number, address and telephone numbers.
  2. If he is married, to know whether it is a marriage in or out of community of property and whether the accrual system is applicable if married out of community of property.
  3. If he has children and if so, their ages and if they are minors, who he wishes to appoint as guardians.
  4. The approximate value and content of his estate.
  5. Those he wishes to benefit: wife, children, friends, employees, charities.
  6. If the value of his estate is considerable, or if he has minor children, whether he would consider creating a trust if it would be beneficial.
  7. Whom he wishes to appoint as executors and/or trustees.
  8. Whether he requires his executors and/or trustees to furnish security.
  9. If children are the proposed beneficiaries, whether he wishes them to benefit equally.
  10. Whether he wants any delay in the vesting of an inheritance to any of his beneficiaries.
  11. If a beneficiary should predecease him, who is to be the alternative beneficiary.
  12. Whether he has given or is likely to give any child a gift of some substance and if so, whether he requires such child to collate the gift.
  13. Whether he wishes to bequeath as a specific legacy any asset to a particular person.
  14. Whether he has shares in public companies and if so, whether he wishes them to be sold or whether he wishes to bequeath them or any of them to a particular person.
  15. If he has immovable property, whether there are any mortgage bonds registered against property and if so, how the mortgage bonds are to be settled.
  16. If any portion of the estate is to be held in trust, what powers are to be given to the trustees and how the trustees must deal with income or capital.
  17. If a trust is to be created and the trustees are to be given powers of investment, what limitation, if any, does the testator wish to impose as to the nature of investments.
  18. Whether he has any firearms and if so, what should happen to them, keeping in mind that fire arms cannot be bequeathed to a trust.
  19. With regard to any cash legacies, whether he wishes any legacy to be given as a pre-legacy.
  20. Whether in the case of any legacy he wishes any conditions to be attached.
  21. Whether he wishes any conditions to be attached to the residuary heir i.e. whether he wishes any portion of the estate to be subject to a usufruct or fideicommissum.
  22. Whether he and his wife want to make a mutual will and to mass their estates or a portion thereof.
  23. Whether he wishes to give an annuity as a legacy to any person.
  24. Whether he wishes to be cremated.

The attorney should where necessary, fully explain the issues involved, and what the relevant legal, tax and other implications will be for the testator’s estate.

Sources: Law of South Africa Wills and Succession, Administration of Deceased Estates and Trusts (Volume 31 - Second Edition)