When it comes to estate planning, we still unfortunately encounter many misconceptions about the drafting and executing of a last will and testament. In particular, there are five key myths about wills in South Africa that urgently need busting to ensure that your wishes are smoothly and successfully carried out, and that your loved ones are cared for after your passing:
· Myth 1: “If I die without a valid will, my estate will go to the State!”
If you die without a valid will, then the Intestate Succession Act will regulate who the beneficiaries of your estate will be. The beneficiaries may include a spouse, biological children, adopted children, parents or other blood relatives as determined by the applicable clauses of the Intestate Succession Act.
It’s only when there is a total lack of beneficiaries that your estate will devolve upon the Guardian’s Fund (Master of the High Court), and if it is unclaimed after a period of 30 years, it will be forfeited to the State.
· Myth 2: “It doesn’t really matter if my will could possibly be invalid, as my heirs can always apply to the court to validate my will.”
An important judgement in this respect was given in May last year by the Western Cape Division of the High Court, Cape Town, in the court case of Dryden v Harrison and Others.
The applicant, who was in a romantic relationship with the deceased, sought an order that a will in the form of an email from the deceased be accepted by the court as a valid will. This will was declared invalid by the Master as it did not comply with the formalities stipulated in the Wills Act.
In certain instances, a court may order the Master to accept a document as a valid will even though the document does not comply with all the legal formalities. However, the court must be satisfied that the document was drafted or executed by the person who subsequently died, and that the deceased person intended the document to be his or her will.
The deceased in the Dryden case had previously executed a will in 2006 which bequeathed his estate to his then-spouse. Notably, however, while the marriage was dissolved by a divorce order in 2011, he did not amend his will. In 2016, the deceased then sent an email to the applicant confirming that if he died all his assets and investments should go to her.
The application was dismissed with costs as the court was not satisfied that the deceased intended this email to be his last will and testament, as he did not proceed to formally execute a will which complied with the necessary formalities as prescribed in the Wills Act. This goes to show the importance of a properly executed will.
· Myth 3: “It will be in order if I sign my will today and let two witnesses sign tomorrow, as I do not have two witnesses with me right now.”
In a South Gauteng High Court case, Karani v Karani NO and Others, the will of the deceased did not comply with the specific legal formality that a will must be signed by the person making the will in the presence of two or more competent witnesses. These witnesses must also sign the will in the presence of the person making the will, and of each other.
In the case of Karani v Karani, two witnesses did sign the contested will. However, the first witness did not sign the will in the presence of the deceased or the second witness. In the end, the court found the will to be a forgery and declared it invalid.
Furthermore, the court made the remark that witnesses to a will should also sign each page, despite the fact that Wills Act only requires that the creator of a will sign each page of a multi-page will. The reason for this is to mitigate any potential dispute between heirs and family members in the future.
It’s a misconception that the formalities required for execution of a valid will are overrated or unnecessary. We, for example, often have clients who return their wills to us signed only by themselves. They then request that someone in our offices witness the will for them, which we, obviously, are unable to do. The fact of the matter is that by not complying with the formalities of the Wills Act, you can potentially invalidate your will. This could result in dire consequences for your heirs at a time when they already have enough on their plate.
· Myth 4: “I have immovable property offshore, but that is covered in my South African will.”
If you have executed a will in South Africa which does not specify that the jurisdiction of the will is only South Africa, it will in terms of our law cover your worldwide estate. However, if immovable property is involved, we strongly advise that you have a separate will drafted by a professional in the jurisdiction where the immovable property is located.
The first reason is that certain countries have statutory rights like forced heirship, and a South African will which deals with the foreign asset will never be able to override the rights of certain family members to inherit within that jurisdiction. Furthermore, a probate (court authority) will be required in most foreign countries to deal with the foreign asset, because South African Letters of Executorship may not be accepted or recognised. Lastly, it is important to note that English might not be the legal language of the particular country, and it might therefore necessitate a sworn translation of the will.
When drafting local and foreign wills, it is also vital that the two wills complement each other. The last thing you want, for instance, is for one of the wills to erroneously revoke the other because the revocation clauses were not drafted in accordance with each other. It’s thus important for you to tell the people drafting your will that you have multiple wills, and to perhaps have a single person co-ordinating the drafting of your local and your offshore will.
It therefore makes sense to involve a professional in the relevant foreign jurisdiction where your immovable property is situated to draft a will dealing only with that asset, as this will potentially save time and costs. Citadel is able to assist you with this by referring you to suitable professionals in other jurisdictions.
· Myth 5: “I don’t need a long, complex will – my one-page will is more than sufficient.”
Clients sometimes complain about a will being way too long or too complex. But while a one-page will with all the required formalities is better than no will, it will seldom make provision (for example) for a testamentary trust to be formed in cases where a minor inherits. If these provisions are not stipulated, then the minor’s inheritance must be paid to the Guardian’s Fund.
The wills that we draft cater for uncertain future scenarios, and are intended to help resolve unforeseen circumstances which may arise. They are very comprehensive and therefore lengthy documents.