Drafting a Will

USEFUL ADVICE TO CONSIDER WHEN DRAFTING A WILL

Having a will is undoubtedly one of the most important things you and your family can do for themselves. Not only can a will protect your spouse, kids and assets legally; it can also specify exactly how you want things to be handled after you’ve passed on. Ian Brink, Managing Director of Crest Trust Holdings Inc., gives us advice...

WHAT IS THE CHEAPEST WAY TO HAVE A WILL DRAFTED CONSIDERING THE CURRENT SOCIO-ECONOMIC CIRCUMSTANCES?

The current socio-economic circumstances and prevailing legislation have forced us to pursue other avenues to do succession planning and the subsequent drafting of a Will. Videocalling and consulting ensures personal inter-action whilst adhering to the call for social distancing. Although most Wills are drafted without first consulting an expert Wills drafter, this can often lead to the incorrect interpretation of a testator’s true intentions, which may result in financial losses for heirs. Make sure to consult with an expert Wills drafter to assist with the drafting of a legally executable Will.

HOW DO YOU CHOOSE AN EXECUTOR FOR YOUR ESTATE?

It is always a good idea to appoint and expert fiduciary practitioner as the executor of your deceased estate. Such a person will administer the estate based on his/her expertise and knowledge of deceased estates within the time allowed by the Master of the High Court to wind up an estate. If a testator wants to nominate an individual, such as a friend or family member, to be appointed as executor of his/her estate, the Master of the High Court will insist that the nominated executor appoints an agent (trust company, attorney, Fiduciary Practitioner (FPSA)) to assist with the administration of the estate. This is done byway of a power of attorney, which means that the executor will instruct a professional institution to attend to the administration of the estate on his behalf. All the responsibilities and accountabilities, however, still lies with the appointed executor.

WHAT DOCUMENTS DO YOU NEED TO DRAFT A WILL?

The expert Wills drafted needs to observe the ID of the testator, and in the event that a joint Will needs to be drafted, also that of the testatrix. Should the testator and/or testatrix be married, it is important to also observe the marriage certificate and ante nuptial agreement. This may play a vital role in the way assets are bequeathed to heirs and surviving spouses.

WHAT IS A USUFRUCT?

A usufruct is the “use of the fruit” by a third party, of a specific asset that is bequeathed to someone else. If, for example, an orange tree is bequeathed to A, subject to the usufruct of B until she dies, it will mean that all the oranges that the tree produces in a year, will be for the exclusive use of B until she dies. The use of the fruit is a limited right, which means that the ownership that A inherits over the orange tree, is limited by the usufruct which B enjoys over that orange tree.

IF YOUR POTENTIAL BENEFICIARY IS MARRIED IN COMMUNITY OF PROPERTY, HOW DO YOU BEST SAFEGUARD THE INHERITANCE FROM THE MARITAL PROPERTY REGIME? In South African law, there are two marital regimes: in community of property and out of community of property with or without accrual. If one is married in community of property and any one of the parties inherits assets, those assets are deemed to form part of the joint estate of the parties, unless the Will stipulates that such inheritance is excluded from the communal estate. Should an heir be married out of community of property, any inheritance received by him/her will be for the sole use and ownership of that heir and will, in terms of the Marital Property Act, also be excluded from any accrual between the parties.

IN WHICH WAY CAN THE INHERITANCE OF A MINOR CHILD BE SAFEGUARDED? The safest way to protect the inheritance of minor children would be to provide for a testamentary trust in the Will into which the Executor has to transfer the inheritance of minors. The trustees of the trust should also be expert professionals who will administer the trust for the benefit of the minors and to transfer the inheritance of such minors to them when they attain the age of majority, which currently is 18 years of age. Failing to set up a testamentary trust will result in the inheritance being paid over to the Guardians Fund which is administered by the Master of the High Court. Access to the Guardians Fund is very difficult and onerous.