How to Draft a Will

 

By Charlene Jansen van Rensburg

 

A will is a legal document outlining how a person's assets will be distributed upon their death. It specifies who will inherit specific assets, who will manage the estate as the executor, and who will be appointed as guardians for any minor children. A codicil is an amendment or addition to an existing will, allowing changes without rewriting the entire document. Both must meet legal requirements to be valid.

 

Anyone who is of sound mind and at least 16 years old can draft a will. The key parties involved in a will include the testator (the person making the will), beneficiaries (those who will inherit the assets), the executor (the person responsible for carrying out the will's instructions), and guardians (individuals appointed to care for minor children). Witnesses, who are neutral parties observing the signing of the will, also play a crucial role in its validity.

 

Legal Requirements for a Valid Will

To be legally binding, a will must:

1. Be Written: Either typed or handwritten.

2. Be Signed: The testator must sign the will in the presence of at least two witnesses, who also sign it.

3. Testamentary Capacity: The testator must be of sound mind and understand the implications.

4. Competent Witnesses: Witnesses must be competent adults who are not beneficiaries (at least 14 years of age).

 

Important Factors to Consider

Joint or individual wills

Decide on whether you want to draft a joint (husband and wife) will or separate wills for each spouse.

 

Inventory of Assets

Before drafting a will, create an inventory of assets such as property, bank accounts, investments, retirement funds, personal belongings, vehicles, and life insurance policies. This ensures nothing is overlooked and assists in making informed decisions about distribution.

 

Handling Debts and Liabilities

Consider how debts and liabilities should be managed. Typically, they are paid from the estate before distributions to beneficiaries. Ensure your executor is aware of your liabilities to manage the estate effectively.

 

Specifying Beneficiaries

Clearly specify who will inherit your assets. This prevents disputes and ensures your wishes are honoured.

 

Detailing Specific Bequests

Detail specific bequests, such as family heirlooms (e.g. wedding rings or any item that has been in the family for generations), amounts of money, or property. Clearly outlining specific bequests helps avoid misunderstandings and ensures your prized possessions go to the intended recipients.

 

Distributing the Residual Estate

Specify how your residual estate (all assets not specifically bequeathed) should be distributed. This can be divided equally among certain people, given entirely to one person (e.g. surviving spouse), or split in any other manner.

 

Appointing a Guardian

If you have minor children, appointing a guardian is crucial. Choose someone you trust to care for your children and discuss your decision with them beforehand to ensure they are willing and prepared to take on this responsibility. A guardian cannot be appointed while a natural parent is still alive and is able to care for the minor children.

 

Choosing an Executor

Choose someone trustworthy and organized to be the executor. The executor manages your estate, ensures assets are distributed according to your wishes, and oversees any legal and financial matters. It is advisable to name an alternate executor in case your primary choice is unable or unwilling to serve. It is always more convenient to nominate someone who the heirs are familiar with.

 

Establishing Trusts

Consider establishing trusts within your will, especially for minor children or beneficiaries with special needs. Trusts provide financial security and manage the distribution of assets over time.

 

Including Conditions and Restrictions

Carefully consider conditions or restrictions you want to put on certain bequests or inheritances. For example, a beneficiary might need to reach a certain age before receiving their inheritance. Ensure these conditions are legal and enforceable; some may be regarded as pro non scripto (as though never written) if illegal, impossible to fulfil, or against public policy.

 

Regular Updates

Regularly review and update your will to reflect changes in your circumstances, such as marriage or divorce, birth or adoption of children, and acquisition or sale of significant assets. Keeping your will up to date ensures it remains relevant and reflective of your current wishes.

 

Professional Assistance

While it is possible to draft a will independently, seeking professional assistance is recommended. Professional drafting can help avoid ambiguities and legal pitfalls that might lead to disputes or the invalidity of the will. By working with a professional, you can have peace of mind knowing that your estate will be managed according to your desires, minimizing potential legal challenges, and ensuring a smoother process for your beneficiaries.

 

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