Mistakes to Avoid When Drafting a Will in South Africa – Part I | Legal Articles

 

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Mistakes to Avoid When Drafting a Will in South Africa – Part I

The most important thing to keep in mind when drafting a will is to make sure there is no room for uncertainty or ambiguity.

This is to ensure that there is no confusion among heirs or beneficiaries regarding their inheritance which may result in a contested will.

Therefore, we have put together a list of errors to avoid when drafting a will which will help avoid any confusion or unintended consequences.

drafting a will

Drafting a Will – Mistakes to Avoid

Omitting Dates

Always ensure that your most recent will and testament has been accurately dated. This is especially important when there is an existing will that you intend on replacing.

Should you not date your most recent will, there may be confusion as to which will is the most recent and applicable.

Vague or Ambiguous Language

The language used when drafting a will should be clear and concise. The vague language will lead to confusion, misinterpretation and subsequently, potential contesting of your will.

For example, instead of stating that your assets are to be shared among your family, it’s better to clarify to which family members your assets should be distributed.

Omitting Signatures

It’s imperative that the testator signs in full at the bottom of each page of the Will. In addition, both witnesses must sign at the bottom of the last page of the Will.

However, it is preferred that the witnesses also sign at the bottom of each page.

Should the Will not be signed as mentioned above, the document may be declared invalid according to the terms of the Wills Act.

Witnesses to the Will

No person who will be benefiting from your will should sign as a witness to your will. Should a beneficiary sign as a witness, he or she will stand to be disqualified from claiming their inheritance.

A witness to your will should be:

  • 14 years or older
  • Sound mind
  • Competent to the extent that they do not need to understand the contents of your Will
  • Able to confirm that the will was signed in the presence of the testator and two witnesses

Failure to Update your Will After Divorce

It’s crucial that you update your Will within three months of getting divorced. If you fail to update your Will within this timeframe, and your ex-spouse is named a beneficiary in your Will, it will automatically be assumed that you intended for your ex-spouse to inherit assets as stipulated in your Will.

According to Section 2B of the Wills Act, should you be deceased within three months of your divorce, your ex-spouse will be excluded from inheriting in terms of your Will.

This applies unless a contrary intention can be shown from the wording of your Will.

Failure to Write a Living Will

While you are in the process of drafting a Will, it’s advisable to write a living will. This is a document that sets out to guide your loved ones and medical practitioners on how you wish to be treated in situations where you are unable to speak for yourself.

Not Updating Your Will After Disposal of Property

Should your Will bequeath any moveable or immovable assets to an heir, you are required to update your Will in the event of such an asset being disposed of or sold.

Van Deventer & Van Deventer Incorporated – Attorneys in Cape Town and Johannesburg

Our attorneys are available to provide professional and legal assistance with drafting a Will. Our aim is to ensure there is no room left for misinterpretation or error so that your estate is distributed according to your wishes.

If you would like further information regarding our legal services related to estates, wills, and trusts, please feel free to contact us.

Comments are closed for this post, but if you have spotted an error or have additional info that you think should be in this post, feel free to contact us.


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