Estate planning is often something most people avoid – perhaps to avoid dealing with the thought of one’s death. However, estate planning is a vital part of a good financial plan because it entails the legacy you would like to leave through your Will.
The estate planning process generally starts with the drafting of your Will. Shockingly, recent statistics obtained from the offices of the Master of the High Court of South Africa shows that less than 15% of South Africans die with a Will.
In a case where there is a Will in place, we often find that the drafting mistakes can either render it impractical for certain provisions to be carried out, or worse still, for the laws of Intestacy to apply. This can lead to unintended consequences, to the detriment of loved ones left behind.
Mistakes to avoid when drafting of your Will
Here are some common mistakes you can avoid when drafting a Will:
Keeping your original Will in safe custody!
The Master of the High Court can only register and accept Wills that comply with all the legal formalities in terms of the Wills Act and in terms Law of Succession.
In a case where the original Will is lost or destroyed and only a copy of the original can be found, the Master of the High Court can only accept such a copy, if the application is made to the High Court in terms of Sec 2(3) of the Wills Act to accept the copy of the Will as the last Will and testament for purposes of the administration of a deceased estate.
Any beneficiary entitled to benefit according to the Will or an Executor nominated, can approach the court for an order directing the Master of the High Court to accept the Will. The Court need to be satisfied that the copy of the Will is valid and represent the intentions of the deceased before they can approve the copy of the Will to be the Last Will and Testament of the deceased. If not, the estate could be administered according the Law of Intestate Succession Act 81 of 1987.
In the estate planning, Will drafting and the safe custody of your Will, one needs to be familiar with the various pieces of legislation. It is therefore important to deal with a specialist to avoid the pitfalls and challenges.
By Adv Anneke le Roux, Fiduciary Specialist, PPS Fiduciary Services
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Disclaimer
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