In South Africa, we are afforded the right of freedom of testation. This means that we are free to bequeath our estates as we wish provided such bequests are not contra bonos mores and provided furthermore, that your will, as drafted and executed, is a legally valid will in terms of the Wills Act 7 of 1953.The gift of being able to leave behind and bequeath an estate is a precious one, but also one which requires due care and diligence when exercising.
Keeping the following factors in mind when instructing a wills draftsman on what your wishes are, shall surely prove to be beneficial:
• Your marital status – If you’re married in community of property, keep in mind that there is no “yours and mind” but only “ours”. If you’re married out of community of property with accrual, be sure to familiarise yourself with the content of your ante-nuptial contract and furnish your wills draftsman with a copy thereof.
• Testamentary Trust – Consider the use of a testamentary trust to prevent your minor child’s inheritance being paid to the Guardian’s Fund or to ensure that your spouse is provided for until his/her death or remarriage. Give due and proper consideration to who you wish to nominate as trustee(s) to act as custodian(s) and administrator(s) of your child or spouse’s inheritance.
• Use of limited real rights – Beware of the hasty use of limited real rights such as usufructs, without considering the practical effects thereof. Speak to your attorney about the legal and practical consequences of such a right.
• Alternative heirs – Keep in mind that your nominated heir may not be able or willing to accept his or her inheritance in terms of your will. Upon whom should such an unwilling or predeceased heir’s inheritance devolve?
• Guardian of minor children – The Children’s Act 38 of 2005 grants parents the right to nominate a guardian or guardians in their wills in the event of their death and/or absence of a natural guardian.
• Business interests & inter vivos trusts – Remember to make specific provision for your member’s interest(s), shares and loan accounts when bequeathing your estate.
• Cash legacies and the residue of your estate – Be sure, when making cash legacies, that your estate will be liquid enough, after deduction of estate administration costs and liabilities, to give effect to these legacies. Also, be sure to know what the residue of your estate compromises.