It is obvious that every adult should have a Will.
Unfortunately, this is not always the case, which frequently leads to considerable confusion and unhappiness for the family of the deceased. People without a Will die Intestate, and the distribution of their deceased estates is made in accordance with the Intestate Succession Act.
In terms of this Act, the distribution of the deceased estate allows for no discretion: accordingly, it is not uncommon that distributions are made to people who the deceased may have excluded, or treated differently. That opportunity to choose, if there is no Will, is lost.
Where there is a Will, it is critical that the Will is drafted according to the Wills Act and various other Acts relevant to Deceased Estates. These Acts include the Maintenance of Surviving Spouse’s Act, the Subdivision of Agricultural Land Act, the Pension Funds Act, the Immovable Property Restrictions Act, the Matrimonial Property Act, the Insolvency Act, the Trust Property Control Act, the Estate Duty Act, the Income Tax Act and, last but not least the Administration of Estates Act.
The Importance of Drating a Professional Personalised Will
From the above it is plain to see that the draftsman of a Will must be a properly trained professional with knowledge of all the above Acts. All too often, Wills are drafted by institutions which simply use a corporate format which is then “doctored” to accommodate the requirements of the Testator.
Where a Will is improperly drafted, from a legal point of view, it is frequently invalid and our Case Law is peppered with instances of Wills declared invalid by our Courts. Where a Will is invalid, the Testator is treated as if he has no Will, and he accordingly dies Intestate.
Any request or provision which he may have made in his invalid Will is irrelevant, and his Deceased Estate is distributed strictly in accordance with the provisions of the Intestate Succession Act.
A further problem, which unfortunately frequently is encountered, arises from poor draftsmanship of an otherwise valid Will. Disagreements between beneficiaries are a common occurrence where clauses are vague or conflicting.
These disagreements often end up in Court causing huge delays in the distribution of the Deceased Estate, and a frightful waste of money in the conclusion thereof, often to be paid out of the Deceased Estate thus diminishing its value. These disagreements also lead all too often to the permanent break-up of family relations.
The Right Way to Draft a Will
A few points I think arise from the above which are worthy of consideration:
- Wills should be drafted by a suitably qualified attorney who is experienced in this field of practice.
- Wills should be drafted, if possible, by an attorney who is known to the Testator and who has some background of the Testator’s circumstances. If the Testator does not have a relationship with an attorney, then the Testator should take the time, as should the attorney, to give a relatively detailed background to the Testator’s life and circumstances. For instance, the Testator might have a family by another marriage, might have challenged children or relatives, might have maintenance or other obligations to ex-spouses, and so-on.
- The selection by the Testator of the Executor of the deceased estate is a crucial decision by the Testator. It is, after all, the Executor who is tasked in terms of the Administration of Estates Act (“the Act”) to interpret the Will, wind-up the Deceased Estate in terms of the Act (a relatively complicated and exacting procedure), and to accurately distribute the Deceased Estate in due course to the beneficiaries of the Will.
I shall shortly write another article which deals more specifically with the responsibilities of an Executor and the various procedures and steps relevant to the winding-up of a deceased estate.