21/08/2019
IS A DIY-WILL SUFFICIENT?
Drafting a Will can bring out the best intention in people, as it gives them a chance to share with loved ones what they have accumulated and what they eventually will no longer need. For example: leaving prime agricultural farmland to children.
Or it can also bring out the worst in those who want to manipulate the behaviour of their heirs. For example: leaving a sum of money on condition that the heir complies to certain stipulations, for instance not wearing make-up, not using a cell phone or be drug-free for a specific period after the benefactor passes away.
Regardless of the motivation, there are plenty of pitfalls when drafting a Will: what is said, how it is said and whether the instructions in the Will are feasible.
For that reason, a DIY-Will is potentially dangerous and should be avoided.
If a Will is invalid, it could have painful, unintended consequences. It may not be able to achieve what was intended and beneficiaries could end up in long and expensive court cases, as they battle over the interpretation of the words or actions. When money is involved, some beneficiaries or potential beneficiaries will look for any loophole to exploit.
It is possible that a DIY-Will, whether it is self-drafted or the template type available online or from stationery stores, can meet all the requirements of a valid Will, but knowledge of what constitutes a Will is not enough. The drafter also needs to be well versed in the effect of common law, as well as laws on the statute book and the implications of the proposed Will on assets, liabilities and cash flow in an estate. Over the years, laws have become more stringent and it is no longer that easy to just compile a slapdash document in the hope that it will serve its purpose.
For instance, in the example mentioned above of leaving prime agricultural land to children, the farm owner would need to know that agricultural land cannot be sub-divided without the permission of the Minister of Agriculture. In the second example, the conditions are toothless as it would be difficult to enforce. The beneficiary will most likely still inherit, anyway. But there are ways to add workable conditions to a Will.
Unwary drafters of Wills may think that if the estate is small, the division is straight forward and the language used is simple, that there will be no problems. Unfortunately, the unknowns stay unknown and are a minefield for the person who does not understand all the laws simultaneously at play.
Template type Wills may work in many circumstances, but with a template Will there is more of a chance of the testators and witnesses failing to comply with the legal formalities in executing the Will. They also may not address specific circumstances. It could be argued that it could work nine out of ten times, but it is the tenth where an expert was needed, which presents the problems.
If someone is brave enough to draft their own Will, speaking to a professional first will most likely make them reconsider. Terms like “thoroughbred” and “bullet-proof” have been used when speaking of Wills, as it is one of the most important documents one will sign in a lifetime. With the knowledge required to draft a proper Will, it pays to consult Legatus Trust to assist.
Some of the common mistakes made in the drafting of a Will are:
• Not sticking to the law
• Not revoking previous Wills
• Non-nomination of an executor
• Not providing for the security of the estate assets
• Not considering debts linked to assets
• Not properly providing for children
• Inserting stipulations that cannot be met or monitored
• Inserting clauses that are against public policy
• Not reviewing a Will regularly
• Not revising the succession clauses
• Lack of estate planning, estate duty and the residue
In the next edition, we will elaborate more on the common mistakes listed above.
Source: Legatus Trust
