How Will I Know if My Will is Valid?

Make sure the Will addresses the following basic issues:

• Are any of the witnesses also receiving a benefit? A witness does not usually benefit under a Will.
• Does the Will comply with the legal requirements, signed and dated?
• Does the appointment of an executor clause allow for the exemption of provision of security, power of assumption and the power to continue the testator's business?
• Does the Will have a clause to provide for the appointment of a guardian and is the guardian exempt from providing security?
• Does the Will have a residue clause?
• Does the Will have a clause excluding assets from the joint estate?
• Does the Will regulate the position in the event of simultaneous death or family obliteration?

Clauses relating to Insurance policies and benefits

• Does the Will bequeath policy benefits?
• Does the Will bequeath retirement benefits? Retirement benefits are subject to the Pensions Fund Act 24 of 1956 which provides that retirement benefits are paid to dependants.

Clauses that could attract estate or other unnecessary costs

• Are bequests made to employees in their capacity as such?
• Are outstanding loans bequeathed back to the trust?
• Are the Testator and Testatrix' estates massed?
• Is the Subdivision of Agricultural Land Act of 1970 transgressed?
• Does the Will contain a limited interest clause?

Clauses that need further discussion with the Testator

• If reference is made to children, which children are referred to? (current or previous marriage)
• Is collation mentioned where applicable?
• Is reference to "cash", "money" and "cash money" made? (these must be well defined)
• Does the Will make reference to minor children and provide for a testamentary trust?
• Are the provisions of the testamentary trust sufficient to provide for future developments?
• Is a substitute trustee named where applicable? (where an inter vivos trust exists)
• Is a special bequest of a specific sum of money made?

Questions that the drafter of your Will should ask:

• Did you divorce recently?
• Does the bequest to the spouse comply with the Surviving Spouses Act?
• Is provision made for minor children from previous marriages?
• Do the circumstances exist for the establishment of a special trust?
• Do you have offshore assets?
• Has provision been made for an off shore Will, or does the current Will take this into account?

The drafter of your Will should establish what effects your marital status will have on planning your estate. The different marital regimes and legislative changes that have taken place over the last few years regarding the status of marriages under the tenets of religious and customary marriages have a profound impact on planning your estate.

Important developments in our law:

The enactment of the Maintenance of Surviving Spouses Act 27 of 1990 has changed the law in this regard and gives a surviving spouse a claim for maintenance against the estate of the first-dying spouse in respect of "reasonable maintenance" until death or remarriage, but only in so far as he or she is unable to provide for their maintenance from his or her own means and earnings.

If your spouse, on whom you are financially dependent, dies, you should establish whether you are adequately provided for in the Will, particularly where the deceased spouse has created a discretionary trust of which you are merely one of several beneficiaries. This is because, as a beneficiary of a discretionary trust, you have no absolute right to any income or capital of the trust. You receive trust income and capital only if the trustees, in their discretion, decide to make a distribution to you. You may therefore be left in uncertainty as to whether the trustees will distribute trust income to you, and whether they will continue to do so on a regular basis.

The law provides that, if a person, whether in error or with intent, fails to make provision in his or her Will for the maintenance of a person to whom they owe a legal duty of support (for example, a minor child) the latter can lodge a claim against the deceased estate for maintenance.

by Salome Tyrrell

Senior Estates Administrator