A Will is a written document in which a person can determine how
his/her assets are to be distributed after his/her death and to
communicate last instructions to various people and
There cannot be effective succession or estate planning if a
valid Will is not in place.
A Will should ideally be comprehensive, yet simple. References
in a Will to assets and other matters should be clear and
Every person of the age of 16 years or more, may make a Will,
provided they are capable of understanding the nature and effect of
A Will should be regularly reviewed to ensure that it always
reflects one's current circumstances.
Why a Will is needed:
- To avoid the application of the laws pertaining intestate
- To allow the testator/testatrix to choose his/her heirs.
- To prescribe the conditions upon which an asset is to be
- To appoint Executors and Trustees who are responsible for the
smooth and sufficient transfer and administration of assets on the
death of the testator/testatrix.
- To apply safeguards to protect an heir's inheritance.
- To avoid lengthy delays in the administration of an estate and
the transfer of assets.
Key Aspects of a Will:
There are many pitfalls that can be avoided if they are clearly
identified and addressed in a well-prepared Will. Some of these
potential pitfalls include:
- Marital status - if you are unmarried, or married out of
community of property, you are the sole owner of your assets and a
single Will can be drawn up whereby your personal assets can be
bequeathed. If you are married in community of property, you and
your spouse are joint owners of the communal estate and you may
effectively only bequeath your share in the joint estate.
- Burial requests - this is expressed as a wish in your Will and
should be discussed beforehand with your next-of-kin.
- Substitution - should a beneficiary predecease you, or die
simultaneously with you, who should benefit in his/her stead?
- Awards to minor beneficiaries - in the case of movables,
provide for a hand-over to their guardians until they attain their
majority. In the case of cash awards, provide for a testamentary
- Age restrictions - a beneficiary may only receive his/her
inheritance upon attaining majority (currently 18 years of age).
Testators often stagger distribution, for example 50% at age 21
years and the balance at age 25 years.
- Guardianship - where children of the testator/testatrix are
minors, the nomination of guardians must be carefully considered
and provision should be made for substitution guardians in the case
where a nominee cannot accept the appointment.
- Foreign estates- care must be taken to avoid conflict should
you have onshore and offshore assets. Separate Wills dealing with
onshore and offshore assets should be drawn up as probate
formalities differ from country to country.
- Maintenance commitments - these could lead to substantial
claims against your estate if not adequately provided for. The
creation of a dedicated testamentary trust can be most effective in
- Business interests - provision should be made by way of a buy
and sell agreement for the disposal of your interests as a going
concern. Determine reasonable funding for your partner(s) so they
can pay the purchase consideration to your estate and beneficiaries
with relative ease.
- Equalisation - make use of the principle of a bequest price if
an asset bequeathed to one beneficiary is worth more than the share
of another beneficiary.
- Inter Vivos (Family) Trust - the existence of such a trust and
any loan owing to you must be taken into account. Be aware of the
Capital Gains Tax implications.
- Record of Unwritten Agreements - use your Will to record the
terms of any verbal agreements, e.g. a loan to a child which should
be accounted for.
- To comply with the relevant legislation.
- To ensure that the ultimate distribution of your estate will be
equitable, practical and timeous.
- To rule out any potential conflict of interest.
- To make use of effective estate planning techniques to minimise
estate duties where possible.