By: Hannah Myburgh
Besides ensuring that your will is written in clear and concise language, here are some steps to ensure that your will achieves its intended purposes and can withstand legal scrutiny:
Draft your own will: Be sure that the person who writes or types out your will does not stand to benefit from your Will in any way. Allowing an heir or beneficiary to write out or type out your will can provide grounds for contestation.
Choose your witnesses carefully: When choosing people to witness your will, do not select anyone who stands to benefit in any way from your will. As such, do not let any beneficiaries, heirs, or legatees sign as witnesses, nor your executor, guardian, or trustees.
Sign your will in the presence of your witnesses: In order for your will to be valid and to avoid contestation, ensure that you sign your will in the presence of your witnesses and that you, in turn, watch them witness your signature. The validity of your will can be contested if you and your witnesses do not sign in front of each other.
Pay attention to the formatting: Avoid leaving large blank spaces between paragraphs or between the last paragraph and your signature as this can allow fraudsters to insert wording or inadvertently alter your will after you have signed.
Expressly revoke all previous wills: If you have drafted wills in the past, be sure to include what is referred to as a ‘revocation clause’ which effectively serves to nullify all previous wills drafted. Ideally, destroy all copies of any previously drafted wills. This will give your loved ones peace of mind that your will is the latest and most up-to-date expression of your last wishes.
Date your will: While dating your will is not a legal requirement, it is highly advisable that you do so. If you have previous wills in existence which you now wish to replace, not dating your will can confuse you as to which is the latest version of the document.
Clearly identify your heirs and beneficiaries: When making a bequest or naming an heir, be sure to include their full name, identification number, and relationship to you to avoid problems identifying the intended beneficiaries. Many families use common family names which results in multiple members of one extended family having the same first name, middle name, and surname, which can result in unnecessary confusion.
Sign your will on every page: It is not sufficient to sign your will on the last page. Ensure that you and your two witnesses sign at the bottom of every page. Failure to do so can result in the contents of the unsigned page being challenged.
Consider the residue of your estate: Do not forget to include a clause in your will that deals with the residue of your estate. Also known as the ‘left-overs clause’, this clause stipulates what should happen with the residue of your estate after providing for legacies. If you fail to deal with the residue of your estate, you may die partially intestate and the residue of your estate may be distributed amongst your intestate heirs.
Don’t include provisions that are unlawful, immoral, or impossible to fulfil: Do not include any clauses that are illegal, against public policy, or impossible to fulfil. For instance, bequeathing assets to your child on condition that he divorces his wife is immoral and against public policy and can result in that portion of your will being declared invalid.
Use unambiguous language: Make sure that you use unambiguous language in your will. For example, a sentence that reads ‘I leave the residue of my estate to my family’ is unclear because the term ‘family’ is vague and can leave the will open to interpretation. ‘Family’ is a broad term that could mean one’s immediate family, extended family, or financial dependants.
Be careful when making amendments to your will: If you make any changes to your will, be sure to sign as close as possible to the amendment, and that two witnesses attest to your changes. They do not need to be the same witnesses that originally signed your will. Amendments can include a deletion, addition, or alteration of a clause, or an interlineation where additional text is added between sentences.
* Myburgh is a financial planner at Crue Invest.
PERSONAL FINANCE