National Wills Week takes place in September and no doubt many an inbox will be filled with “Free Will” offerings. This progressive initiative introduced by The Law Society of South Africa (LSSA) and supported by many legal firms across the country is intended to encourage South Africans to do the responsible thing by drafting a will and enjoying the right of freedom of testation. The LSSA encourages attorneys to participate by offering their professional services freely for one week.
There’s always plenty of advice offered on the importance of drafting a will and having a plan in place for when you die. However, commercial law attorney, PJ Veldhuizen warns that the danger of accepting a free service is that, on occasion, not all considerations are taken into account. “We fully support the LSSA’s initiative, but suggest that this free service should be for only the most basic of wills,” he said.
Veldhuizen stressed that scenario planning is of utmost importance when drafting a will and advises that you should consult with the attorney and carefully explain the composition of your family and loved ones and details of your wishes. Veldhuizen says that putting a will together and succession planning can be a complicated matter even in a simple family structure and by not having a concrete plan can lead you to debilitating legal issues down the line.
Drafting a will in a blended family – ‘it’s complicated’
Modern families are particularly vulnerable, what with ex-spouses, step-children and half-siblings. The scenario planning that accompanies the dynamics of a blended family can be the very reason for putting the task off. “We’ve had many a distraught successor or confused partner in front of us dumbfounded by the outcome of the division of a loved-one’s assets in a deceased estate,” says Veldhuizen. Going on to explain that it is fairly common for spouses to leave all of their Estate to the other partner, but when you throw in children from previous relationships and the importance of fair treatment it makes things a lot more complicated.
You’ll be left with a few challenges to consider and what will best suit your wishes, such as whether an inter-vivos (while you are living) trust structure prior to death would be best or should you opt for a testamentary trust? You will also need to carefully consider the appointment of the estate executor, possible trustees and a clear and level head will be required in nominating all your beneficiaries and the division of assets.
Sometimes the toughest part is having the discussion with your spouse or partner and agreeing on a solution, so this is often best done with your attorney, who can explain the processes of executorship and the time considerations of winding up your estate. It is most useful for couples to consult a legal practitioner or specialist estate planner to cover all possible solutions and outcomes. It honestly requires a what-if approach, and often an independent facilitator is the best person to assist.
There is much to consider in the drafting of a will and for many families, these matters are not as simple as a cut and paste template or a ‘do-it-yourself’ version.”