The easy will journey - Part 6: You can’t RIP if you rule from the grave.

Picture it – it’s the year 1990 and you own a farm comprised of many hectares. This could be a great investment for future generations and by the year, say, 2023, this farm could be worth millions. Sounds great, doesn’t it? 

The problem is that you decided to include a clause in your will stipulating that the land must be sold to your farm manager for R7.50 per hectare when you pass away. Your intentions were good as you meant for the proceeds to benefit your family. Unfortunately, you neglected to update your will in line with the increased land value. 

Even though your family may try to dispute and work around this reasoning, your will is your final say and the last wishes contained in it will have to be carried out; all your hard work being sold for a few hundred rand, and your family left with close to nothing.

The sad reality is that the abovementioned is not a farfetched scenario but is based on a true account. 

Your will is one of the most important documents you will ever sign for many reasons. To name a few…

• It allows you to state your last wishes, who should inherit your assets and property, who you would like to act as executor of your estate, and who you wish to nominate as guardian/s of your minor children.
• It enables you to protect the interests of your loved ones and helps ensure that there is no unnecessary delay in settling your estate after your death. 
• It helps eliminate family feuds, confusion, drama and additional stress for your loved ones.

It’s important to emphasise that the will is there “to protect the interests of your loved ones”, not your interests but those of your loved ones. We often like to think that this goes hand-in-hand. That’s not always the case. We’ve also had an instance where a request was made to have a will drafted where the client bequeathed her estate to her husband, allowing him to live on her property until he enters a new relationship. If he enters a new relationship, he has to move out. 

This type of clause might seem like an indication of your feelings for the person you leave behind, however, the romance dies down when this person is left with a world of admin. Think of ruling from the grave as tying someone’s hands behind their backs yet expecting them to perform tasks at their full capacity. It is simply not practical.

While we’re on the topic of things that we shouldn’t be doing…

• A will cannot contain any illegal, unethical or immoral provisions.

You may not, for example, disinherit minor children. Children’s well-being is always put first as far as last wills and testaments are concerned. If there are enough assets and/or liquidity in the last will and testament, it must provide adequately for the maintenance and education of your children. If it does not, the will could be declared invalid. Even if a child was disinherited, it does not deprive them from claiming against the deceased estate. The duty of a parent to support their children does not terminate upon the parent’s death. Children over the age of 18 will have to prove that they are unable to support themselves. A child’s maintenance claim ranks above all other claims against the estate, except for debts owed to creditors of the estate.

• A last will and testament may not be a forgery. A last will and testament may also be declared invalid if the document is genuine, but the signature that should have been the testator’s was forged.
• The expression of a testator’s last wishes may not be coerced. If the last will and testament is not a result of the testator’s own free will, the last will and testament will also be declared invalid. This is hard to prove and is often the departure point for feuding families who contest the contents of a will.
• A beneficiary may not be an unworthy person. They will be excluded from a last will and testament if they are considered as such. An example of an unworthy beneficiary is a person who tried to defraud his or her co-beneficiaries of their rightful inheritance.

Using a professional company to help draft your will ensures that it is accurate, valid, witnessed correctly and that all relevant considerations are taken into account.

Capital Legacy has drafted over 650 000 wills over the last 11 years and can assist you in drafting yours too. Simply visit www.capitallegacy.co.za for more information or speak to your financial advisor.

If you missed any of the blogs in this Easy will journey series, you can read them here:

1. Procrastination is a thief!
2. Your will is like a map for your loved ones.
3. Ready, set, get your will drafted.
4. Have you read the fine print?
5. Okay, seriously, get your will updated!

And that’s a wrap! Go forth and enjoy the peace of mind of having your will drafted by SA’s #1 wills and estates specialists.