The scene is set. A group of people are gathered in a large office. The lawyer clears his throat to commence with reading the Will. In the distance, the director yells ‘Cut!’. These scenarios fittingly only occur in Hollywood. In reality, there is no dramatic revelation of the deceased person’s strange last wishes with all sorts of eccentric conditions. It should not take a team of legal experts to be able to decipher the contents of your Will and give effect to your wishes. Here are some points to keep in mind when getting your affairs in order:
Keep it simple
Your Will is a formal, legally binding instruction to your Executor on how you wish your assets to be distributed after your passing. The responsibility falls on the Executor to ensure that your wishes are carried out and provide proof of it to the Master of the High Court. If your Will is unnecessarily complex it can have unintended consequences down the line. The more straightforward your Will, the more straightforward it will be to administer your deceased estate.
Practical aspects
Freedom of testation is an absolute right in South African law with very few exceptions. You are allowed to dictate what you would like to happen to your assets and possessions. The trap to watch out for is ensuring that your wishes can actually be carried out. Plainly put: is it physically possible and legal. If not, you run the risk of your wishes being disregarded even if they are documented in your Will. Discuss with a legal or accounting professional if there are alternative ways to achieve the end-goal you have in mind. There will however be some scenarios where you will have to adjust your expectations and wishes.
The future, Testamentary Trusts and ‘ruling from the grave’
As a parent of young children, you have dreams and aspirations for your children and give them every opportunity to achieve their goals. If you are not there to see to it yourself, the Trustees you nominated in your Testamentary Trust are there to do it on your behalf. The key word here is trust. You cannot foresee the future and make provision for all possible circumstances. Your Trustees manage your children’s inheritance on their behalf and for their benefit. However, they are bound by the Testamentary Trust Deed. If the Trust Deed is drafted too restrictive and conditional, it can force your Trustees to act in a way that will possibly prejudice your minor heirs.
Life does get complicated, and it is nevertheless essential to adequately prepare for the inevitable. Your personal situation might require more complex solutions to achieve the best results, which is why it is important to get professional advice when considering the contents of your Will.
Contact Jeanne Stander at jeanne@curranattorneys.co.za to discuss drafting your Will in a practical and effective way.
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