12 September 2018: More South Africans should take advantage of the opportunity to have their wills drafted during this year’s Wills Week from 17 to 21 September.
This is according to Anica Ungerer, Director in the Estates and Trusts Department of Mazars, who points to the fact that the vast majority of working South Africans still die without appropriate instructions about how their property should be divided. In fact, statistics from the Office of the Master of the High Court reveal that approximately only 23% of deceased individuals in South Africa leave Wills1.
“The administration of deceased estates can become complex and there are various administrative difficulties that can arise if your Will was not properly drafted. It is incredibly important, especially for individuals who have dependents, to make sure that they have a legally binding Will in place, even if these are just basic instructions. Without a Will in place, there may always be a risk that one’s dependents are not adequately provided for, if they have to rely on their inheritance for an income.”
Wills Week is an annual nationwide initiative that invites people to have basic Wills drafted free of charge at any of a number of participating firms across South Africa. “This is specifically aimed at the drafting of new Wills, and while it may mean that individuals will only be setting up very basic testaments, they can already be much more secure in the knowledge that their final wishes will be honored.”
With this in mind, Ungerer explains that there are a number of basic guidelines to follow in order to make the most of one’s opportunity to draft an adequate Will.
- Bring a valid witness
Ungerer states that a Will must be signed in the presence of two or more competent witnesses, who must be present simultaneously. “If your Will consists of more than one page, each page needs to be signed by both you and your witnesses. Witnesses must be 14 years of age or older, be mentally competent, and cannot be beneficiaries to your estate.”
- Take all your costs and liabilities into consideration first
According to Ungerer, individuals can easily bequeath more than they actually have in their estate. “Always remember that there is a hierarchy to be followed when dividing one’s estate. Administration costs and liabilities are settled first (which would include estate duty and other taxes), before the distribution to beneficiaries can take place. Make sure that you have a reasonable estimate of what these costs might be before drafting your Will.”
- Make sure that beneficiaries are listed correctly
Beneficiaries should be listed as they appear in their identity documents, with their full names and, if possible, their ID or Passport numbers, says Ungerer. “The reason for this is simply that, where the name in the Will and the identity document do not correspond, the executor will have to provide confirmation to the Master that the person listed in the Will and the person referred to in the identity document is the same person. As the Will is a professional, legal document, full details and correct information are therefore of the utmost importance.”
She adds that it is advisable to avoid referring to a class of beneficiary, rather than individuals. “Simply referring to beneficiaries as one’s children or grandchildren may lead to complications, since it may become necessary for each individual to prove that they are members of the group named in the Will. It is much wiser to single out each beneficiary by name.”
- Choose the right executor
Ungerer explains that appointing two executors is best for effective estate planning. “It is important to choose an Executor, such as a relative or a friend that your family trusts, to act in conjunction with a professional. This Executor would, in conjunction with the beneficiaries, be directly involved in important estate related decisions. At the same time, the Master of the High Court has the right to refuse to issue a Letter of Executorship to a lay person, unless they have proper confirmation that assistance will be provided by qualified lawyers, accountants or firms that specialise and are experienced in the winding up of estates.”
- Plan to review your Will regularly
Lastly, Ungerer says that individuals need to revisit their Wills at regular intervals, or when their circumstances change. “This could, for example, be when there is a marriage or divorce or when a child is born, if you start a new business or obtain a large sum of money. Do not accept, once a Will has been drafted and signed, that it is applicable to your circumstances forever. Changes in one’s estate could complicate matters if they are not adequately accounted for in a new draft of one’s Will,” she explains.
“Once your Will is drafted, you can revisit and review it as often as required. The most important thing, at the very least, is to make sure you have a document in place. Ensuring that you have proper arrangements for your estate in place, could make a significant difference in the lives of your dependents if the worst should happen,” Ungerer concludes.
Page 29 of the Office of the Master of the High Court Guide. http://www.justice.gov.za/juscol/docs/2016-Guide-MOH.pdf
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