LET'S TALK Common problems with wills
Updated: Oct 14, 2019
The drawing up of a Will is not simple. It is important to seek the services of a professional who has experience in the drafting of Wills in order to avoid potential litigation over a poorly drafted Will. Case Law is littered with examples of such cases.
There are two broad areas which pose a risk, namely non-compliance with the formalities as laid down by the provisions of the Wills Act 7 of 1953 as amended and the unintended consequences of the content of a Will.
A. Grounds on which a will can be declared invalid
The will is not executed in compliance with formalities. (This includes parties who are not competent to witness the signing of the Will);
The witnesses or testator do not have the required capacity or animus testandi at the time of the execution of the will;
The testator was unduly influenced, deceived or otherwise forced to make the will (i.e. the will was not made voluntarily);
The signature of the testator in the will has been forged;
The will is made dependent on a condition which cannot be fulfilled;
The will has been revoked.
B. Legal provisions available for curing a defective will
There are rescue provisions which may be availed by way of a court order in terms of which the Master of the High Court is compelled to accept the document as a valid Will despite non-compliance with the formalities.
This process requires a High Court Application which is costly and results in unnecessary delays.
Section 2(3) of the Wills Act No 7 of 1953 “ the Act”, which was amended by the Law of Succession Act 43 of 1992, provides as follows:
"If a court is satisfied that a document or the amendment of a document drafted or executed by a person who had died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the Court shall order The Master to accept that document, or that document as amended, for the purposes of the Administration Estates Act 66 of 1965, as a will although it does not comply with all the formalities for the execution or amendment of wills referred to in ss (1)"
Should the application for the Court Order fail then the estate will devolve in terms of the law of intestate succession.
C. Importance of amending the will after the divorce
The general rule in our law is that the change of status of a testator, such as getting married, getting divorced or having children does not automatically result in the revocation of an existing Will;
Section 2B of the Act affords a recently divorced testator a grace period of three months, within which to get his affairs in order and to review his Will. The amendments must be made on account of his changed status, i.e considerations whether or not the ex-spouse is to still be a beneficiary in his Will must be made;
In an instance where a testator dies within three months of his marriage having been dissolved by divorce then any will that he executed before that divorce will be interpreted as if the former spouse had died before the divorce;
The former spouse is regarded as having pre-deceased the testator, meaning that the former spouse will not inherit in terms of the will unless the will specifies differently. If the will makes it clear that the bequest will be valid regardless of a divorce, then that spouse will inherit if the testator dies within three months of the divorce. If no provision to that effect is made on the will, then the former spouse will not inherit;
If you fail to review your will then an assumption is made in that the testator didn’t want to update the will, so whatever the terms of the will are, that is going to remain as he had a three months grace period to change his will but failed to do so. The former spouse who was nominated as a beneficiary in terms of that will, will now be able to inherit.
D. Lack of liquidity and the adverse consequences arising therefrom
An executor of the estate’s main duty is to locate the estate of the deceased and pay off all debts and liabilities before distributing the remainder to the beneficiaries stated in the will;
If there is insufficient liquidity or cash in the estate to pay all the debts, the executor of the estate will have to sell the assets of the estate or the heirs will have to have funds available, adding pressure to their financial capabilities, in order to settle outstanding debts so as to prevent assets, which may have a sentimental value, from being sold from the estate;
However, If no other alternatives are available, the assets will have to be sold from the estate in order to settle the debts of the estate possibly leaving nothing available for distribution for the heirs.
The proceeds payable from life policies cannot be included in the liquidity analysis in those instances where specific beneficiaries have been nominated with the respective financial institution as those proceeds effectively bypass the estate and pay directly to the nominated beneficiary.
E. Bequests to minors without providing for such to be administered in Trust
The danger in not providing for a trust is that any funds bequeathed to a minor child, will have to be paid over to the Guardians Fund which is administered by the Master of the High Court. Proceeds from employment benefits – such as pension fund, provident fund and group life benefits are paid into beneficiary funds.
However, claiming from this fund has proved to be cumbersome as its time-consuming and leaves the child at the availability of officials that have to deal with numerous claims;
A testamentary trust makes the process of administering the funds far easier, it also protects the rights of the minor child by providing your trustees with certain rights and obligations in dealing with the assets.
F. Ruling from the grave and consequences arising therefrom
The freedom of testation” holds that persons are entitled to dispose of their property upon their death as they see fit. The heirs and the executor are bound to carry out testator’s instructions.
In BoE Trust Limited and Another (2013), the court held that:
“South African law holds freedom of testation very highly. Freedom of testation encapsulates the freedom to dispose of assets freely, but also includes putting into effect the wishes of the testator as they are recorded in the will.
The person’s wishes must be followed and that section 25 of the constitution protects a person’s right to dispose of their assets as they wish upon their death is well held.”
G. Examples of complicated conditions to bequest
Scenario 1: A couple was married out of community of property with accrual. The accrual system stated that upon death or divorce the difference in growth of the accumulated assets must be divided equally between both marriage partners;
The wife had left all her assets to her children in her will. What she had not realized is that her assets included fifty percent of her and her husband’s combined estate. As her husband’s net worth was greater than hers, he had to pay money over to her estate even though he was the legal guardian and would be raising the children.
Scenario 2: The father had created a testamentary trust on his death with the stipulation that only grandchildren born of his daughter could become beneficiaries of the trust. If she did not give birth to a child, then his son’s children would become the sole beneficiaries.
The provision was clearly intended to prevent any step-children from inheriting; what he had not envisaged was that his daughter would adopt a child. Legally the adopted child had no claim on the trust and the son’s children were entitled to the entire estate.
Conclusion and recommendations
It is important for the testator to ensure that the content of the Will reflects his wishes and that the provisions of the Will give effect to the carrying out of such wishes in a manner which is both clear and practical.