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Potential Pitfalls to Look Out for When Drafting Your Will
The importance of preparing a proper Will that clearly states out the wishes of the Testator is important. Once the Testator dies all that is left is the Will and the Testator is no longer around to explain what was meant in the Will or what was intended, it is up to the executor and heirs to interpret from the content of the Will.
These are the some of the common mistakes that are made during the process of Will drafting:
Exclusion of Assets without a ‘residue clause’: Testators sometimes leave out certain assets in their Wills, this therefore means that such assets will be devolved of in terms of interstate succession rules. It is of utmost importance that a ‘residue clause’ is included in the Will that will determine how the residue of the Estate will be dealt with.
Not Specifying a guardian for minor children: Where the Will does not appoint a guardian for the children should both parents die, this could lead to the state appointing a guardian which could have financial and legal implications on the children.
Appointing the wrong Executor: upon death, the appointed Executor is responsible for winding up the Estate. If the appointed Executor is incapable of managing the estate this could lead to a lengthy and drawn out winding up and distribution process. This could have serious financial implications on dependants left behind and also run the risk of them potentially misappropriating some of the Estate’s assets for personal gain. It is important that you know and/or have serious confidence in the Executor Appointed.
Not adhering to all prescribed legal formalities for a Will: Where the Will doesn’t adhere to the prescribed formalities, such Will can be declared invalid by the Master or the Will may be challenged on invalidity in the Courts. Should it be declared invalid this could lead to the estate being dealt with in terms of interstate succession.
Not updating Will within three months of divorce: Where the Testator goes through a divorce this does not mean that the ex-spouse’s benefits stipulated in the Will terminate with the marriage. It is therefore essential that should you wish to no longer benefit your ex-spouse in the Will, that you upon divorce you review the Will and make the necessary changes.
Failure to update your Will: It is of utmost importance that every Testator reviews their Will at least once a year to ensure that all assets are covered and that changes made during that year are recorded and planned for in the Will. Should you acquire new assets, or any major events happen, it is advisable that the Will be reviewed as soon as possible after the acquisition or event.
Vague and ambiguous clauses: It cannot be emphasised enough that the testator make his wishes known as clearly as possible. Vague and ambiguous clauses may lead to disputes and lengthen the process and may even go as far as being interpreted in a manner that does not reflect the wishes of the testator.
Failure to consider marital system implications: The marital system of the testator is important in that it affects the Estate and whether the surviving spouse has a claim to half or part of the accrued value of the Estate. Where this is not considered, the Testator might find that he is unable to bequeath parts of the Estate and this may lead to some beneficiaries especially dependents not being sufficiently provided for.
Failure to Revoke Previous Wills: If you have drawn up your most recent Will with the intention to revoke previous Wills, it is important that this is expressed. A failure to revoke prior Wills may result in the Wills being read together and this may result in unintended disposals.
Key Takeaway: The planning aspect of drafting a Will is very important. It is important that the Will cover every asset and every angle of the testator’s life to avoid a lengthy winding up process and possible disputes.