Legal Articles

It’s obvious that having a last will and testament in place is extremely important, but knowing how to write a will is even more important.

There are many areas of a will that, when not written correctly, can be misinterpreted. The result is your estate is not administered or distributed according to your wishes.

This article is the final part of a two-part series that addresses how to write a will in South Africa and, most importantly, what mistakes to avoid.

How to Write a Will in South Africa – Mistakes to Avoid

Misuse of Legal Terms

Legal terms can be hard to understand by the layperson and incorrect use of these terms can result in complete misinterpretation of your demands.

Consequently, incorrect use of legal terms can ultimately bestow different rights on your heir that what you intended.

Allowing a Beneficiary to Write Your Will

The person who writes out your will should not be named a beneficiary, legatee or heir in your will. This will immediately disqualify them from inheriting anything allocated to them.

Not Setting up a Testamentary Trust

Testators often bequeath assets to their minor children but forget to make provision for a testamentary trust in terms of their Will.

In the absence of a testamentary trust, all assets bequeathed to a minor will be housed in the Guardian’s Fund which is managed by the state.

A testamentary trust only comes into existence in the event of your death and is designed to house the assets left to your minor children until they are old enough to look after their own financial affairs.

However, it remains important to bear in mind that your Will should clearly specify what the trust’s duties will be, as well as who the income and capital beneficiaries should be.

Not Dealing with the Residue of Your Estate

Many testators forget to include a clause dealing with the residue of their estate. After providing for legacies, you can bequeath the remainder of your estate to your chosen beneficiaries.

Should you not stipulate what should happen with the residue of your estate, it will automatically be distributed according to the rules of intestate succession.

Not Clearly Identifying Beneficiaries

It’s extremely important to specifically identify your beneficiaries by use of their full birth names, identity numbers and their relationship to you.

This is to avoid confusion with regard to several family members or loved ones having the same name.

Failing to Appoint a Guardian for Minors

Should you not appoint a guardian for your minor children in your will, the Master will be required to appoint someone on your behalf who may not be the person you would have chosen.

Furthermore, failing to appoint a guardian in your will can cause conflict within the family as to who would be the best person to take guardianship of your minor children.

Not Providing for your Dependants

Although all individuals have freedom of testation, there are specific and reasonable limitations to this freedom:

• Your will can be contested by your minor child for the provision of maintenance, should you fail to provide adequately for them in your will
• In terms of the Maintenance of Surviving Spouses Act, your surviving spouse may be permitted to claim for maintenance if you did not make adequate financial provisions for him or her
• Regarding marriages with accrual, the surviving spouse has a legal claim for his or her share on the accrual. This is in terms of the Matrimonial Property Act

Not Having a Foreign Will for International Assets

Not all countries require that you need a foreign Will in accordance with their legislation, should you own assets in that location.

However, it’s important that you determine whether or not a foreign will is necessary. Generally speaking, moveable property owned internationally may be governed by a South Africa will, whereas immovable property may require a foreign will.

Failing to Tell Your Loved Ones Where Your Will is

If your will cannot be found by your loved ones, the administration of your estate may be delayed or adversely affected.

Therefore, it’s extremely important to let your family know exactly where your will is so that they can locate it easily if and when necessary.

Van Deventer & Van Deventer Incorporated – Estates, Trusts & Wills

When it comes to knowing how to write a will in South Africa, it’s important to know what mistakes to avoid.

Our attorneys in Cape Town and Johannesburg can provide you with the much-needed legal assistance with writing your will, ensuring that there is no room for misinterpretation.

If you would like more information about our legal services, or why it’s important to know how to write a will, please feel free to contact us.