The easy will journey - Part 4: Have you read the fine print?

Signing on the dotted lines

Many people think that you can tick that box and sleep easy once you’ve drafted your last will and testament. The truth is that drafting your will is only half the job. Ensuring that it’s signed and witnessed correctly is of paramount importance. Unsigned wills are a big problem as you might think you’ve done the job, but the will gets rejected.

‘Will-signing guidelines’ to keep it simple

1. All last wills and testaments must be in writing. This means that a will must be typed out or even handwritten. We don’t suggest handwritten though as legibility can often be a problem.
2. You must sign every page of your will otherwise it will not be recognised as the most recent version. 
3. Signatures must be wet ink signatures meaning the signatures must be done with pen and ink on a physical piece of paper. Digital signatures are not allowed.
4. Your signature must be made in the presence of two or more competent witnesses.
5. A relatively unknown and interesting fact is that any person of 14 years and older with sound mind is allowed to sign a last will and testament as a witness. A spouse, partner or relative by blood or adoption cannot sign as a witness.

Don’t lose the plot

If something were to happen to you, would your loved ones know where to find your will? Do you have a ‘death file’/’life file’ where your important documents are kept?

We recommend creating a copy of your will to avoid it getting lost / destroyed etc. Safekeeping is so important to us that we send a courier out to collect your signed will once completed and store it for you, at no cost to you.

Wills should be dated to avoid confusion in case another will is found. It will also give more clarity if the pages are numbered.

The risk of throwing caution to the wind

We are often posed the question by married couples as to whether it’s better to have joint wills or separate wills.

Some people like the idea of a joint will as they feel it protects their children’s inheritance should they pass away, and their spouse remarries. At Capital Legacy we don’t recommend joint wills because they can be restrictive/limiting and here’s a story bases on actual events that’s an excellent example of why:

Mary married a widower (Tom), they drafted wills but never signed their wills. Tom became terminally ill and passed away before signing the new will. It has now come to light that Tom’s deceased first wife’s (Rachel) estate has not been lodged yet. The will between Tom and Rachel was a joint will wherein Tom together with the children are heirs. The joint will between Tom and Rachel states that everything goes to the children if they both pass. Now Tom’s children from his first marriage want the newly widowed wife (Mary) out of their mother's (Rachel) house. It is one big mess.

A joint will, often used by married couples, typically states that when one spouse dies, the surviving spouse inherits everything, and when the second spouse dies, all assets go to their children (if applicable). 

A joint will can be modified while both partners are alive, as long as both parties are in agreement. However, once the first spouse passes away, the second spouse cannot change the joint will even if circumstances change. The inability to change a joint will after the first spouse dies can cause unnecessary hassles for the surviving spouse.

Failure to have separate wills can in some instances prevent the surviving spouse from changing beneficiaries. For example, if the surviving spouse remarries, their new spouse and stepchildren cannot inherit assets that are bequeathed to children from the first marriage as listed in the joint will. In other words, the surviving spouse can create a new will listing new beneficiaries, however they cannot bequeath anything that would contradict the joint will.

Joint wills can also pose unnecessary pressure / constraints on the surviving spouse. Suppose, for example, the first spouse passes away and during the estate administration process (which can take a year or two in some cases) the surviving spouse has a need to sell their home to downsize or has a need to dispose of an asset listed in the joint will. The joint will is irrevocable at that stage, so the surviving spouses’ hands are “tied” while the estate is being wound up.

When there are no kids involved it’s slightly simpler, e.g. if the terms were that the surviving spouse inherits everything, they would then own the assets entirely and can sell or bequeath them in a new will as they please. When the joint will includes a survival clause or lists children as heirs as example, is where it can get unnecessarily complicated. 

Mirror Wills, a good alternative to joint wills:

A popular and effective option for many married couples or life partners is mirror wills. These are almost identical wills where both partners leave their estate to the other. You also name the same people and organisations as your secondary beneficiaries. If both die simultaneously, the estate goes to the surviving children. 

As with a joint will – which is a single document executed by both spouses – each spouse or partner may also name their own executors in mirror wills. This is a very important decision as an executor is the person appointed to ensure the instructions of the Testator or Testatrix are carried out.

In South Africa there is an Estate Duty and Capital Gains Tax exemption for inter-spousal bequests and so drafting a mirror will makes practical sense if the intention is to make use of the available exemptions.

Another important provision could be to set up a testamentary trust so that Trustees are appointed to protect their inheritances until children are old enough to manage their affairs. Provision can also be made to appoint guardians for minor children if both spouses die.

Bumps in the road

An important caveat is that both parties who have mirror wills need to understand that the other person still has a right to change their will in future.

With divorce rates on the rise, spouses need to plan their affairs carefully in advance, but when circumstances change due to divorce, they must ensure they update their wills immediately to reflect any changed goals and desires. Also, remember that your antenuptial contract influences how your assets are divided when you pass away.

Reviewing wills regularly to ensure they meet specific goals is always advisable.

So, there you have it! Sign and witness your will correctly. Make a copy. Store it safely. Inform your family as to how they can access your will. If you’re married or have a life partner – you have options! Revise revise revise - as your circumstances change.

At Capital Legacy our expert consultants will assist you with getting a valid will in place, taking your unique circumstances into consideration.