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There’s always time to think about your will later, right? Maybe not. “Later” often happens when you least expect it and there can be many unintended consequences of an out of date or poorly thought out will.
David Knott, a fiduciary expert at Private Client Trust, says that some people only have their first exposure to a will when the attorney preparing their ante nuptial contract prior to marriage suggests that they draft one.
Make sure you consider all possibilities
“Typically this Will would leave the entire estate of the first dying spouse to the survivor and should the couple die simultaneously the estates would devolve upon their children,” says Knott, who cautions however that the Will should have gone further to consider what should occur if, for example, the couple meet with a motor accident whilst on honeymoon.
What happens if both you and your spouse are fatally injured?
“In this hypothetical case the husband is fatally injured whilst the wife lingers on in intensive care for a few days or weeks before succumbing. The husband’s estate, which might include donations and other assistance from his family, would devolve upon his wife which in turn would be combined with her estate and this would devolve upon her intestate heirs, probably her parents. Naturally the husband’s parents might feel aggrieved at this arrangement. The Will should ideally have stipulated a reasonable division of the combined estate back to both sets of parents should the couple have died without children.”
What happens if a couple divorces?
“Should our happy couple have survived the honeymoon and several years later decide that they are no longer happy and divorce, the Wills Act makes provision that a Will signed before the divorce effectively freezes any benefit to the divorced spouse for a three month period should the other party die. Once the three month period has passed, the law re-instates the terms of the Will, so benefiting the previous partner again. Essentially the law allows a divorced person a three month window to amend his Will,” advises Knott.
What if a widow or widower remarries? What about their children?
Another example of how things can go awry without a well-advised Will is if a widow or widower were to remarry late in life. “Often there are adult children who support the arrangement as they would like their parent to be happy in their golden years. However, the children are later unhappy following the death of that parent when they discover that the step-parent inherits the estate of their own parent, so taking what the children believe to be their right. The parent, rightfully accepting responsibility for the welfare of their new partner, could have created a trust in their Will to provide for the new partner without disinheriting their own children.”
When should you consider getting a will? And who can execute it?
A Will needs to be carefully considered and updated frequently to avoid hardships and heartache for your heirs and beneficiaries. There is no wrong time to consider a Will - a Will can be executed by anyone over the age of sixteen years who in mentally competent. This should be amended whenever circumstances change, be it financial or family. The important aspect is to consult with an expert to make sure all eventualities and contingencies have been adequately covered. Lastly the Will must be drafted in a clear, concise form and must be signed, dated and witnessed in the prescribed manner.
For more information or assistance with your Will contact Private Client Trust on (021) 671 1220 or email info@privateclient.co.za
