Wills explained: common mistakes and essential tips for your estate

In addition to the better-known aspects about having a will – such as actually having a legally valid one – some other, less understood items are important to note when deciding how best to distribute your estate after death.

A will is a must because otherwise your assets will fall subject to the vagaries of the legal system, and distribution will happen according to certain pre-determined calculations. Apart from this situation, most likely not being your wish, it also means the process can be held up endlessly in the court process.

When determining how best to bequeath your assets, such as whether to set up a trust, it’s always a solid idea to speak with an expert in this field. They can guide you on the technicalities (appointing an executor, ensuring that your will is a valid legal document, among others) as well as the more financially tricky parts, such as the fact that life policies are not included in your estate and need to be dealt with through a separate process.

Personal Finance has pulled together some aspects from case law as well as experts, which are full of little oddities that may not necessarily come up when you consult with a financial planner, bank, or lawyer about setting up a will.

Faeeza Khan, senior legal specialist at Liberty, points out that a massive mistake some people make is not signing a will. Other nitty-gritty details she provides include that wills must be in writing (even handwriting) and witnessed by people no younger than 14 and who are “of sound mind”.

Spacing of the signature can make all the difference. In Kidwell v The Master, a will was declared invalid because there was about 17 cm of blank space between the end of the text (including the witnesses’ signatures) and the testator’s signature. The court held that this gap meant the document didn’t comply with the formal requirement in the Wills Act that the will is signed at the end by the testator.

Anyone over the age of 16 can make a will, but if their parents witness their signature, they can’t inherit, Khan explains. In fact, if you have any involvement at all with the testator, it’s best not to sign as a witness, she adds.

Personal Finance’s research shows that the Wills Act, which dates to 1953, doesn’t make any provision for electronic signatures. A “wet-ink” copy, therefore, needs to be kept somewhere safe.

While the Electronic Communications and Transactions Act provides for some legal enforcement of electronic signatures for certain documents, it does not apply to wills, which are governed by the six-decade-old law.

(As an indication of just how old this legislation is, it starts with: “Be It Enacted by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa.”)

Given the law’s age and the fact that there are no apparent court cases dealing with another aspect of the digital age, the Act also doesn’t make provision for digital wills.

A precedent may be set at some stage, allowing for video wills under certain specific circumstances, in a similar manner to a soldier’s will, which enables members of the forces to make a valid will without following the normal formal requirements, such as two witnesses, provided it’s in writing.

PJ Veldhuizen, MD at Gillan & Veldhuizen Inc., adds that there are often other laws to consider. Among these is whether you sell a wine farm, for example. Under the Sub-Division of Agricultural Land Act, for example, farmland cannot simply be split among children without ministerial consent – a restriction that has broken many an estate plan, he explains.

Cryptocurrency wallets, domain names, online businesses, or royalties from creative works need to be specifically catered to through proper and detailed instructions in a will. “Too many estates lose value simply because executors don’t even know certain assets exist,” notes Veldhuizen.

It’s also important to ensure that someone has the power to do something with your social media accounts – be it leaving them as a living memorial or shutting them down. If you want to leave them in someone else’s control, you need to set this up now and choose someone you trust.

Town & Country Law lists some interesting items that people have bequeathed. Among these is world-renowned playwright William Shakespeare, leaving his “second-best bed” to his wife, Anne Hathaway.

Napoleon Bonaparte requested in his will that his head be shaved after death and the hair given to his close friends – possibly so it could later be tested to see whether he had actually been poisoned.

What can’t be handed down is debt, says Khan. However, she explains that your debts don’t vanish when you die and must be paid first before anyone can inherit. “If there aren’t enough assets, the estate is declared insolvent, but heirs don’t inherit the debt.”

As laughable as some of this is, death is a rather serious topic – these are just some of the unusual aspects that should be considered.

Other issues that also need to be sorted out sooner rather than later are life insurance as well as making certain that beneficiaries on policies such as retirement annuities or life insurance are up to date, as these fall outside the ambit of a will.

PERSONAL FINANCE