Do-it-yourself wills are tempting. Templates are free online, stationery shops sell them, and many people believe a handwritten page is enough. The cost of getting it wrong is usually discovered only after the person has died. A defective will can be rejected by the Master of the High Court, delay the estate, trigger family disputes or leave assets to the wrong beneficiaries. This article explores common mistakes made in DIY wills and explains how they can be detrimental to estate planning.
Signing formalities required
The Wills Act 7 of 1953 (“the Act”) sets strict rules for a valid will. In general, these requirements include that a testator must sign on every page, including at the end of a will[1] and must be signed by two competent witnesses[2] who are present at the same time as the testator. Common mistakes include a missing witness, incompetent witnesses, witnesses who sign separately (or later) or a typed will that was never signed.
Section 2(3)[3] of the Act allows the High Court to order the Master to accept a document as a will if the court is satisfied that the deceased intended it to be his Last Will and Testament despite the defects. While section 2(3) empowers the High Court in certain instances, to condone a defective document, Bekker v Naude[4] restricts this by requiring that the deceased must have personally drafted the document rather than merely giving instructions to a third party. Furthermore, as established in Webster v The Master and Others,[5] the Court must be certain that the deceased intended that specific document be their final will, rather than a mere preliminary draft.
A condonation application in terms of section 2(3) is a costly and uncertain last resort. It should not be treated as a substitute for complying with the signing formalities required for a valid will.
A beneficiary as a witness or writer of a will
Section 4A of the Act disqualifies anyone who witnesses a will, signs on the testator’s behalf, or writes out the will or part thereof in their own handwriting from benefiting under that will. The spouse of such beneficiary who also witnesses that will would also be disqualified. A common pitfall is that families often ask a spouse or child to assist writing out or witnessing the will, without realising they are also named as a beneficiary in it and that this act may disqualify them.
There are, however, exceptions. A court may declare a witness or their spouse competent if they did not defraud or unduly influence the testator during the signing process[6], and if at least two other competent and non-benefiting witnesses also signed as witness to a will.[7] In Opperman v Opperman and Others,[8] a surviving spouse who witnessed the will was declared competent to inherit, but only after a court application which was opposed by the testator’s children. Using independent witnesses avoids protracted litigation costs and delays in the administration of the estate and possible wholesale exclusion of important beneficiaries of a will.
The use of vague or ambiguous wording
A legacy stands or falls by the pen that builds it and therefore a will is only as strong as the specificity of its wording. Bequests such as “I bequeath my jewellery to the children” or “I bequeath my car to my niece” cause disputes when there is more than one car, or when the children disagree about what counts as jewellery. Other challenges include naming a beneficiary by first name only, percentages that total more than 100%, and instructions that contradict each other. A professionally drafted will describes assets precisely and identifies beneficiaries by full name and identity number.
Bequeathing assets that do not belong to you
A testator can only bequeath what forms part of their own estate. Where spouses are married in community of property, the joint estate is divided on death, and only the deceased’s half share falls forms part of their estate. A bequest of the entire marital home to the children, for example, cannot be given effect if the surviving spouse is a co-owner. In addition, assets held in a trust, and those that pass by named nomination, such as life policies and retirement fund benefits, also fall outside of the will. A will should therefore be drafted to accurately reflect how the testator’s finances and assets are structured.
No provision for substitute beneficiaries
A common source of uncertainty for clients is what happens in the event that a beneficiary dies before them. A DIY will rarely makes provision for these potential circumstances. Where the beneficiary is a descendant of the testator, the Act[9] may substitute that beneficiary’s own descendants, who will inherit per stirpes[10], unless the will indicates otherwise. In other cases, the bequest generally falls into the residue[11] of the estate and if the will has no residuary clause, passes under the rules of intestate succession, potentially with a result the testator never intended. A well-drafted will therefore names a substitute beneficiary for each bequest and a residuary beneficiary for everything else.
Bequeathing assets to minor children without a testamentary trust provision
A will that simply bequeaths “everything to my children” creates difficulties where the children are minors. Unless the will provides otherwise, a minor’s inheritance must generally be paid into the Guardian’s Fund, which is administered by the Master of the High Court. Parents who prefer a trusted person to manage the inheritance until the child reaches a suitable age should establish a testamentary trust in their will and nominate a trustee[12] and guardian to safeguard their minor children’s interests.
Not revoking earlier wills
A later will does not necessarily revoke an earlier will in full. Unless it expressly provides for revocation, the earlier will may remain valid to the extent that it is not inconsistent with the later will. Where two wills overlap, this invites disputes between beneficiaries. For example, a beneficiary under the earlier will may argue that the original bequest still stands, while a beneficiary under the later will may argue the opposite. The disagreement often ends in a High Court application to interpret the wills, and the estate generally cannot be distributed until the position is certain.
Losing the original will
The Master of the High Court ordinarily requires the original will, and a photocopy or scan will generally not be accepted. Where the original has been lost, the High Court can order the Master to accept a copy as the deceased’s will, but this requires a costly court application. In S and Others v V N.O. and Others[13] the High Court confirmed that where the original will cannot be found, the applicant must show, on a balance of probabilities that the deceased did not destroy it with the intention of revoking it. The court was satisfied that this had been proven, declared a scanned copy of the deceased’s 2012 will valid and directed the Master to accept it. This outcome was only achieved after a costly High Court application. The simplest way to avoid that litigious expense and uncertainty is to keep the original will in a safe place, such as with your attorney, and to make sure your executor knows where it is.
Conclusion
A will is one of the most important documents a person will ever sign, yet it is often prepared with the least care. Having your will drafted or reviewed by an attorney helps ensure that it is legally valid, suited to your circumstances and capable of giving effect to your wishes. If you already have a DIY will, our team would be pleased to review it and advise you on whether it meets the relevant legal requirements and reflects your wishes.
[1] Section 2(a)(i) read with section 2(a)(iv). [2] See section 2(a)(ii). A ‘competent witness’ is any person 14 years or older who has the legal and mental capacity to testify in court at the time of signing a will. [3] Section 2(3) reads “If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)”. [4] 2003 (5) SA 173 (SCA) (31 March 2003). [5] 1996 (1) SA 34 (D). [6] Section 4A(2)(a). [7] Section 4A(2)(c). [8] (3659/2015) [2016] ZAFSHC 26 (3 March 2016). [9] Section 2C(2). [10] ‘Per stirpes’ is a legal term which means that when a beneficiary has died before the testator, their share passes to their own children, and they split that one share equally between them. The per stirpes rule does not apply to spouses. [11] The residue is any remaining assets after all specific and named asset bequests have been made. [12] A trustee is defined as an individual named in a testator’s will to manage, protect, and distribute the estate assets for the benefit of minor beneficiaries after the testator dies. [13] (28329/2015) [2016] ZAGPJHC 221 (11 August 2016).Associate
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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