By Tamryn de Villiers
1. Validity requirements
To ensure that your Will meets all the requirements as per legislation in SA to be valid:
You would not want your Will to be declared invalid after your death because it was not drafted correctly, with the result that your estate is administered according to the laws of Intestate Succession. An invalid Will may mean that the heirs as intended by you will not receive anything from your estate, delays may be matter of course as no executor is validly appointed and a nominated executor is not exempt from providing security in a valid Will. The professional drafter has to also ensure that, should you have offshore assets, your Will meets the validity requirements of the jurisdiction where your offshore assets are situated. For example, validity requirements include that every page of your Will has to be signed in full by you and two witnesses and you and the witnesses has to sign in each other’s presence at the same time. Your Will has to be dated to confirm which Will is the later and valid Will, revoking previous Wills. If one of your heirs or his/her spouse sign as witness to the will, such heir may not benefit from the Will.
2. Tailored for you
To ensure that your Will is specifically tailored to your needs and wishes and that your specific circumstances are taken into account for the drafting of the Will and not a one size fits all template:
For example, you may leave assets outside SA to minors to be held in a SA trust. In terms of current exchange control regulations a SA trust may not hold non-SA assets (other than asset swap assets). The non-SA assets will have to be repatriated to SA to be held by the SA Trust, which may not have been your intention at all.
3. Jurisdiction of Assets
To ensure that the requirements and processes in different jurisdictions where you hold assets are taken into account in order to determine if an asset needs to be specifically mentioned in your Will or if you might require a separate Will in order to deal with that asset:
For example, an original Will dealing with a property in certain jurisdictions may be necessary to enable it to be transferred seamlessly to your heirs, and if dealt with in a worldwide Will in SA, the only original may have been lodged with the Master’s Office and may not be available to use for the transfer.
4. Marital regime
To ensure that your marital regime is taken into account when drafting a Will as this could have an impact on the way in which your estate will be distributed:
For example, it could be your wish that your children and spouse are treated equally, but if you are married with the accrual system applicable to your marriage, the accrual claim will be satisfied first and foremost, with the residue then divided between your spouse and children, which will not be in line with your intention.
5. Where your children live
To ensure that if your children live outside South Africa, that it is taken into consideration:
For example, you may bequeath your estate to a SA Trust but one of your children live in Australia and one in the US. Your child in Australia and the US could be subject to punitive taxes when he/she ultimately receives a distribution in Australia and/or the US from a trust outside Australia and/or the US, and therefore would not be able to ultimately benefit equally with your SA children from your estate as you intended.
6. Peace of mind
Knowing that your Will is drafted correctly will give you and your loved ones peace of mind, knowing that your affairs have been properly planned and will be in good hands when you are no longer there to do so.
Kindly contact Tamryn de Villiers at tamryn@fidelisvox.co.za for further information on the above or if you would like assistance with any aspect thereof. The above list and its consequences are not exhaustive and are mentioned in general terms and there could be many other specific consequences not mentioned above.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)