Making or updating your will is an important part of providing for your family. A useful review considers both its legal validity and whether the instructions can be carried out in your circumstances.
A will may have been signed and witnessed correctly but still leave avoidable uncertainty. The estate may not have enough cash to meet its obligations, the nominated executor may not be suited to the work, or the will may no longer correspond with the family, the assets or the structures through which those assets are held.
The practical question
Use these seven questions to check whether your will and wider estate plan are likely to work as you intend.
01
Can your family find the signed original?
Correct signing and witnessing matter. So does safe custody. A carefully drafted will is of little assistance if the signed original cannot be found after death.
The Department of Justice cautions that the Master cannot simply accept a certified copy in place of an original will. Where no original is available, it may be necessary to approach the High Court for an order accepting a copy; otherwise the estate may devolve under the law of intestate succession. The original should therefore be kept safely, and the appropriate people should know where it is.
02
Which assets does the will actually control?
People often think that a will determines what happens to everything they own or regard as family wealth. That can be misleading. The route followed by an asset may depend on how it is owned, the document governing it and the applicable law.
Trust assets are held under the trust's arrangements. Your will generally deals with your own assets, including shares you own in a company, rather than assets owned by that company. Retirement fund death benefits, policy proceeds, your share of jointly owned assets and assets abroad may each need separate consideration. Start with a clear picture of what you own, how it is held and which rules apply.
03
Can the nominated executor handle the likely work?
Naming a person in a will does not itself confer authority to administer the estate. The executor must be appointed by the Master and may need to provide security unless an exemption or other lawful basis applies.
The sensible choice depends on the likely estate. A straightforward estate and one involving a business, trust, foreign assets, a dispute or substantial tax work do not make the same demands. Personal trust is important, but availability, independence and practical ability also matter. Remuneration and security should be considered deliberately rather than left to chance.
04
Will the estate have enough cash?
An estate may be wealthy on paper and still lack the cash required to settle debts, tax and administration expenses. If the available cash is insufficient, an asset intended for a particular beneficiary may have to be sold or another arrangement may be needed.
This is one reason why a will cannot sensibly be reviewed in isolation. The balance sheet, likely tax consequences, debts, guarantees, maintenance needs, insurance and expected administration costs can be as important as the wording that determines who inherits.
05
Are children and dependent family members properly provided for?
Where minor children, persons with disabilities or financially dependent relatives are concerned, a broad statement of intention may not produce a workable legal and administrative arrangement.
The will should be considered together with guardianship concerns, the proposed administration of inherited assets, the age and circumstances at which control should pass, and the people who would carry the responsibilities. The correct structure depends on the family and should not be copied mechanically from another person's will.
06
Do the will, trust and business arrangements fit together?
Your will may rely on a trust continuing in a particular way, while the trust deed or arrangements for appointing trustees say something different. Similarly, if you intend a family business to continue, its company documents, shareholder agreements, finance terms and signing authorities need to support that plan.
Reviewing these documents together helps you identify gaps and check whether the arrangements support your family's intentions.
07
Has anything material changed?
A will is a document made at a particular time. Marriages, divorces, births, deaths, estrangements, reconciliations, new businesses, the sale of property, foreign relocation and changes in the law or tax position may all affect the assumptions on which it was prepared.
An annual review need not result in a new will every year. Its purpose is to identify whether the existing will and related arrangements still reflect the person's circumstances and objectives.
Conclusion
A will should work in real life
Having a valid will is considerably better than leaving an estate to be dealt with without one. The further question is whether the will forms part of a plan that can be carried out in the circumstances likely to exist after death.
That requires attention not only to wording, but also to ownership, available cash, authority, family relationships, fiduciary responsibilities and the administrative work that someone will ultimately have to perform.
Official material
Sources
General information only
This article provides general information about South African law and practice. It is not legal, tax, financial or other professional advice and should not be relied upon as advice applicable to a particular person or set of facts. Please read the website's Legal Notice.