The pitfalls of not having a will or having a will that has not been drafted by an attorney
17 September 2020 | Marili Orffer
To date we have received many estates where the deceased did not have a will or had a will, but the will was either invalid or impossible to administer due to the lack of legal expertise in the will drafting process.
Some of the dangers of not having a will:
The intestate law of succession
One of the most common reasons for having a will is to ensure that the people whom you wish to benefit on your passing, inherit from your estate. This prevents the law of intestate succession from being applicable to the division of your estate after your passing. Many people are not aware of the law of intestate succession and the influence it has on the practical administration of an estate. In many estates where there was no will left by the deceased and the intestate heirs could not come to an agreement on the redistribution of assets, the Executor of the estate was forced to sell assets in order to distribute assets according to the intestate law of succession.
Tax liability and liquidity issues
Where a deceased person passes away without leaving a will, it is very likely that there was no estate and tax planning done in order to avoid a cash shortfall and to reduce the Estate Duty payable, Capital Gains Tax and other taxes. The lack of planning can result in a cash shortfall where intestate heirs may be required to settle the debts of the deceased in order to receive their inheritance.
Matrimonial Property consequences for beneficiaries
One of the Clauses commonly included in a will is the so called “Exclusion of Marriages”- Clause. This Clause ensures that the beneficiaries’ spouses cannot claim what beneficiaries have inherited from the deceased. The law does not exclude the inheritance from a beneficiary’s estate, or the joint estate where the beneficiary is married in community of property, unless it is specifically excluded in a Will or an Antenuptial Contract.
Another consideration for having a valid will is to provide a guardian for a minor or disabled child/children and to ensure that their inheritance is managed by trusted persons in a Testamentary Trust for their benefit. Where no provision is made for the control and management of a minor or disabled child/children’s inheritance, the inheritance will be paid into the Guardian’s Fund and administered by the Master’s Office.
Some of the dangers and pitfalls of not having an Attorney draft your will:
The first danger is that the Will might not be valid at all. The law sets out the requirements for a legally valid will. Where a will does not meet the said requirements, the Master will not accept the will and the estate will most likely be administered in terms of the law of intestate succession. Alternatively a costly Court Application by heirs to have it declared valid may ensue.
Illegal or vague provisions
The second danger is that the provisions of your will might not be legal, against public policy or too vague or uncertain to be executed. These provisions will result in the specific Clauses of the will being unenforceable or subject to lengthy and costly litigation.
The third danger is impractical provisions of a Will. There are many practical considerations for administrative purposes. For example, in terms of the Subdivision of Agricultural Land Act, no agricultural land may be subdivided without the consent of the Minister. In other words, a farm cannot be bequeathed to more than one person or entity. Where this Act is not taken in to consideration, heirs are forced to conclude a redistribution agreement and, where the heirs cannot reach such an agreement, the Executor of the estate may have to sell the farm.
The considerations above are not a closed list of pitfalls. It is therefore advised that you consult with an Attorney with the relevant expertise to advise you with regards to your wishes and draft a will for you that is legally valid and practically executable.