SEVEN MYTHS ABOUT WILLS

WHY IS A WILL SO IMPORTANT?

If your client doesn’t have a Will or if he/she has an outdated one, this is a good time to draft a new Will or review an existing one.  EFBOE, as nominated executor, does not charge for the drafting or safe keeping of Wills.

There are several myths and misconceptions when it comes to last Will and Testaments.  We are going to look at a few of these:

1.  “I am too young and don’t need a Will right now.”

The reasoning behind this statement is quite understandable.  The chances of older people succumbing to death due to natural causes are much higher than for younger people.  However, younger people have a higher risk of dying in motor car accidents or in other violent conditions.  Road deaths have skyrocketed in the world.  Statistics show that 80% of people that die in road accidents, fall in the 19 – 34-year age group.  Irrespective of age or health, no one knows when death will knock at their door.
Any person over the age of 16 can have a Will provided the testator is mentally capable of understanding the consequences of their actions when signing the Will.

2.  “I am too busy, it will have to wait.”

Everyone is busy with their daily lives. The busier we get, the easier it is to procrastinate. It seems inconvenient to have to make time to attend to a Will because there are other priorities that are deemed more important.  People also do not want to be confronted with their own mortality. The consequences hereof, will have to be confronted by those who are left behind after death. This is one of the most important documents a client will sign in their life time and is worthy of the effort and time spent in the drafting thereof.

3.  “It is not so bad to die without a Will.”

This is not the case at all.  With a Will, your client has the opportunity and choice to decide how to distribute their estate assets. They can decide whom they want to entrust their estate to and how it should be administered. Without a Will, they die intestate. The Law of Intestate succession regulates how the estate must be divided, which could result in a surviving spouse only receiving a child’s share while they need the whole estate to carry on with life as usual. There is no control over the appointment of an executor as the Master will appoint one and they will not be able to choose a guardian for their minor children. Trustees will not be appointed to safeguard minors’ inheritances until they become of age.  Minors’ inheritances will be paid into the Masters’ Guardian Fund and will be paid over to them when they turn 18 years old. If your client wasn’t married, but had a life partner, it could lead to severe controversy and even litigation between the life partner and the family.  There are no advantages to dying intestate, only serious disadvantages.

4.  “I am on my own, have no assets, thus a Will serves no purpose.”

It is highly unlikely that a person has no assets – a motor vehicle, banking account, contributions to an employer’s pension fund and the accumulated value thereof, an insurance claim that the estate may have. Even if there is no spouse, life partner or children, there could be parents, siblings or other close family members or friends. The reality is that someone will have to report the estate and help to wind it up.  With a proper Will in place, it is just a quicker and less stressful process for everyone involved.

5. “My spouse/life partner already has Power of Attorney to decide over my assets, which will be sufficient.”

A Power of Attorney that allows a person to act on another’s behalf, automatically ends at death.  After death, only the Master of the High Court can appoint an executor who must handle the assets in an estate.  Any authority or rights given to beneficiaries, for instance to draw money from bank accounts, to manage a business or to live in the house, falls away when a person passes away.

6. “It is only a piece of paper.  I can draft it myself.”

There are no specific instructions that a Will has to be drafted by a professional.  Before using someone else’s Will as a template or buying a generic one in a shop, however, be aware of the following general pitfalls:

  • There are specific legal requirements that a Will has to adhere to in order to be valid. If a Will does not comply with these requirements, the beneficiaries will have to lodge an application to the High Court to declare the Will valid.  The costs of such a court case will possibly have to be paid by the estate.
  • If the instructions in a Will are unclear, it may lead to unnecessary disputes, frustration and wasted legal costs to try and clarify what exactly the wish or instruction was.  This is not a legacy a person wants to leave for loved ones and family in a time when they must cope with the trauma of losing someone dear to them.  The court rolls are full of these types of estate-disputes because of instructions that are unclear, ambiguous, vague or totally inconsistent with other provisions in the same Will.  Legal terms and Latin words are used in Wills, but if the meaning thereof is unfamiliar or not understood properly it is best to stay clear thereof.
  • Marital status, previous choice of marital dispensation and the content of a prenuptial contract (if applicable) influences the estate and how the Will should be drafted.  This is a complicated grey area and best handled by professionals.
  • Should there be overseas assets, two separate Wills are required to cover both local and overseas assets.  The one should not revoke the other.  There is no simple answer in this case, professional advice is necessary.
  • There could be room to benefit from estate planning to minimise the estate duty and other costs.

Spouses, life partners or beneficiaries may need access to immediate cash while the estate is being administered.  Bank accounts will be frozen after death.  Therefore, beneficiaries or partners should have separate bank accounts and access to funds.  By getting all things in order and having a properly drafted and valid Will, money and time can be saved at a later and traumatic stage.

7. “I drafted a Will years ago.  That will do the trick.”

Not a good idea.  Life is not static, things change.  People get married, get divorced, lose loved ones, gain new loved ones, start businesses, sell businesses, buy houses, sell houses, become ill, get healthy.  Furthermore, new laws are introduced, the tax environment changes annually, businesses are affected and financial situations change.  All these changes affect an estate.  It is a good idea to revise a Will annually.

Keep in mind that the stipulations in a customary Will only come into effect after death.  If this important document is not in order and valid at the time of death, it is too late to rectify it then and the consequences will have to be borne by those left behind.

 

Source: LawDotNews