Sarah Love and Elmien Pols, both fiduciary practitioners at Private Client Holdings

National Wills Week is from 16-20 September 2024 and is a good reminder to draft a valid Will if you don’t have one or to update it if your personal or family circumstances have changed.

Dying without a Will can present of host of problems for loved ones, including:

• Your assets not being left to the person of your choice.
• Delays in the appointment of an executor, who may be somebody you may not have chosen.
• Unhappiness and conflict among members of your family as there are no clear instructions on how to distribute your assets.

“Your Will is one of the most important documents you will ever sign,” says Sarah Love, a fiduciary practitioner at Private Client Holdings, a multi-Family Office based in Cape Town, where she deals with a range of fiduciary matters including the drafting of Wills.  Here are her top reasons to have a Will.

Freedom of testation

In South Africa, we have the principle of the freedom of testation, i.e. you choose who can inherit from you. In other countries there may be forced heirship, where a portion/all of your estate must go to certain people irrespective of your wishes. But, to enjoy this freedom, you need to draft and correctly execute a Will. If you don’t, the rules of intestate succession apply and, the spouse you are in the process of divorcing, your estranged child/parent/or sibling, depending on the circumstance, may stand to inherit from you.

Minor children

If you don’t cater for your minor beneficiaries, their inheritance may be paid into the Guardian’s Fund of the Master of the High Court. “This may not be the best outcome if the available capital warrants setting up a trust or if there is a suitable and financially astute guardian who could look after them and their inheritance in a more appropriate manner,” cautions Love.

You get to choose your executor

By choosing your executor, you can ensure that they are able to administer your estate, particularly if this has been done as part of your estate plan. Your executor would then know what your assets are, and in which jurisdictions, as well as who your asset managers are, etc.

You can do some good in the world

Many people choose to leave money to charities they already support or have an affinity with. If the charity is a SARS-registered PBO, there are also tax advantages.

The opportunity for introspection

By sitting down and thinking about what would happen on your death, you may realise that your estate may not provide enough for your spouse or children. This gives you an opportunity to take steps to mitigate this, i.e. put additional life cover in place, etc. You may find that you have more than you need, so you can feel free to use your resources to do the things you love, like family holidays, solo travel or explore philanthropic endeavours.

How do ‘off-the shelf’ Wills stack up?

Off-the-shelf Wills are popular due to their low cost and ease of access, but do they come with risks that could have serious consequences for your estate and loved ones?

“Off-the-shelf Will templates are often generic and don’t account for individual circumstances, such as blended families, unique assets or specific bequests. As a result, they may not accurately reflect your wishes, leading to potential disputes among beneficiaries or legal challenges after your death,” cautions Elmien Pols, a fiduciary practitioner at Private Client Trust.

Pols says that one of the main pitfalls is that off-the-shelf Wills lack the flexibility to accommodate changes in personal circumstances or laws. Life events like marriage, divorce, the birth of a child or acquiring new assets may require updates to your Will, which many of these templates may not easily allow. Additionally, they may not comply with certain legal requirements, risking the validity of the entire document.

Off-the-shelf Wills often lack detailed instructions for the distribution of complex assets, such as business interests or digital assets. “Without professional legal advice and rigorous estate planning, crucial details can be overlooked, leading to unintended tax implications or extended delays in winding up your estate,” says Pols.

While off-the-shelf Wills might seem like a quick and cost-effective solution, they can create more problems than they solve. “For peace of mind and to ensure your estate is handled according to your wishes, it’s critical to get legal advice,” advises Pols.

ENDS