Guides / 26 September 2019, 11:00am / Willie Fourie
Estate planning doesn’t have to be overly complicated, yet people make common mistakes that can have devastating outcomes for those left behind. Here’s what you need to be aware of:
Watch your wording. A misunderstanding with the wording of your will can result in the opposite of what was intended. If the executor of the estate and the heirs to the estate have conflicting views about a will’s provisions (which can often happen), they will look to the Master of the High Court (who must confirm the validity of the will) for a decisive interpretation of any contentious clauses.
Common wording blunders include:
* “I bequeath my farm to my son and the cash in my bank account to my daughter.” The timing of the passing of the parent (testator) becomes crucial here. The son may inherit the farm without the proceeds of the current harvest, as it may have been banked. He would have to wait until the next harvest to have any funds to replant the fields or to pay the day-to- day expenses, while the daughter will have liquid assets (cash) to spend as she pleases.
* “I bequeath my motor vehicles to my son and my investments to my daughter.” In cases like these, how does one treat the collection of vintage motor vehicles in which the testator invested all his spare cash over the years? These and other curious questions will be answered by the court and your wishes may well be for naught if wording conflicts arise.
Select your executor with care. Often, a layperson is appointed as the executor, but using friends or family as executors should be avoided because of the complex nature of winding up estates.
A trusted professional, such as an estate practitioner or a lawyer, is often better placed due to their understanding of the process. As wills must be carefully worded to avoid misinterpretation, well-informed executors play a large role.
Watch out for your witnesses. Having an heir sign as a witness on your will automatically disqualifies him or her from inheriting from your estate. Witnesses may not be beneficiaries of any kind.
Your legal heirs take priority. If your beneficiaries are not, by law, heirs to your estate because of your financial responsibilities, your inheritance will go to your rightful heirs.
Nominating your favourite friend over your estranged kin may become null and void, depending on what is seen to be your duty by the court.
Generally, there are three considerations that can contest freedom of testation, which essentially means you can do what you like. These are claims for maintenance from dependants or a surviving spouse, or claims in terms of the accrual system created by the Matrimonial Property Act.
Don’t do it yourself. Drafting a will without professional assistance can do the opposite of protecting your assets or ensuring your estate reaches those you want or need it to. Yes, you can easily download a template or purchase one at your local stationery store, but working with a qualified adviser to draft your will keeps your wishes for your assets safe, for sure. Including your estate planning in your overall financial planning takes care of the big picture and is best done with the guidance of a professional.
Keep the structure simple. Creating a complex structure within your estate, such as a “usufruct” in favour of a surviving spouse, is a common mistake. In this case, the word “usufruct” is often mistakenly used where a right to occupy a property (habitatio) is granted to another person. If the intention is that the person may only live in the property themselves, but may not live somewhere else and rent it out, it is a lesser limited right than a “usufruct”.
There are countless complexities involved in estate planning that a professional would better interpret or include as needed.
Remember to update it. It won’t matter what you want if it’s not in writing, and failing to update your will when your circumstances change is a common mistake. The most recently dated version of your will is the one that is valid, so if you forget to update your beneficiaries after you get married or divorced, or someone passes away, your wishes might go amiss.
Any important updates need to be carried through correctly, which is why including your will in your financial plan, which should be reviewed at least annually, means that no changes in your life go uncaptured.
Don’t put it off. The worst error is not having a will at all. Many people die intestate, where your possessions are divided in terms of a prescribed formula contained in the Intestate Succession Act. If you don’t have a will in place, set up an appointment to get this done as soon as possible.
Willie Fourie is the head of estate and trust services at PSG Wealth.