The importance and do's and don'ts of a Last Will and Testament

A Last Will and Testament is one of the most important documents, more so if you have a family and assets including property. Without this, your loved ones may be at risk of financial and emotional hardship. You also forfeit the right to choose who inherits what and the right to nominate who administers your deceased estate.

While the Common Law and Constitution provides for freedom of testation as confirmed by the Supreme Court of Appeal (SCA), there are some limitations:

• It cannot be illegal, immoral, against public policy, impossible to fulfil or vague and unenforceable.

• Legal obligations for maintenance of dependants and your surviving spouse (subject to qualification) will generally take preference over bequests.

• How you are married could be relevant. If out of community of property with the accrual system, your spouse may have a claim for half of the combined increase in value of your separate estates during the marriage (rules apply).

• Courts also have a variety of statutory powers to for example alter trust provisions and remove or modify restrictions on immovable property.

• Pension and retirement fund benefits may not be paid out to your nominee as the fund's administrators must first identify any dependants with possible claims.

• Bequests must conform to the Constitution and may not be discriminatory. A 2010 SCA ruling for example removed a clause in an educational fund bequest open only to "European girls born of British South African or Dutch South African parents" and a 2006 High Court Ruling struck down provisions limiting a bursary fund to "white non-Jewish males".

On the other hand, the SCA in 2018 upheld a private trust's provisions benefitting only biological descendants to the exclusion of two adopted grandchildren. The court held that public trusts (as above) may be judged more strictly than private trusts. Note though that the particular facts of the case played a part in the Court's decision and adopted children and grandchildren might well succeed in different circumstances.

A well-drawn and valid will should avoid areas of uncertainty or dispute. The more extensive your assets, especially if it involves property and trusts, the more important it is to seek legal advice to ensure that it is properly drawn, correctly and clearly reflects your wishes, meets the above tests and can be validly executed.

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