Let’s be honest, drafting a Last Will and Testament is not exactly at the top of anyone’s list of exciting weekend activities. Most people would rather clean out the garage or spring clean their homes.
However, a Last Will and Testament is one of the most important legal documents you will ever sign. It determines what happens to your assets when you’re no longer around to explain what you meant by “the good jewellery” or “the family heirlooms.”
Unfortunately, many people make avoidable mistakes when drafting their Last Will and Testament, often leaving their loved ones with confusion, delays, unnecessary costs, and the occasional family feud that would make reality television producers proud.
Here are some of the most common mistakes and how to avoid them.
- Not Having a Will at All
The most common mistake is not having a Last Will and Testament.
Many people assume they are too young, don’t have enough assets, or simply keep putting it off until “next month.”
If you pass away without a valid Last Will and Testament, your estate will be distributed according to the Intestate Succession Act, not according to what you may have told your family around the braai every December- if your estate plan currently exists only as verbal instructions beginning with, “If anything happens to me…”, it’s time to get a Will.
- Using Vague or Ambiguous Language
A Last Will and Testament is not the place to be mysterious, statements such as “I leave my belongings to my children” may sound simple enough, but what exactly counts as “belongings”?
The house? The car? The antique watch? The collection of coffee mugs that somehow multiplied over the years?
Where there is more room there is for interpretation, the greater the risk of disputes. Clear wording helps ensure your wishes are carried out exactly as intended and prevents family members from debating the meaning of your Last Will and Testament.
- Failing to Comply with Legal Requirements
A Last Will and Testament must comply with specific legal requirements to be valid.
In South Africa, among other requirements:
- The Will must be in writing.
- The testator must sign each page, in wet ink.
- Two competent witnesses (persons over the age of 14 and competent to give evidence in court) must be present.
- The witnesses must sign in the presence of the testator or testatrix.
Unfortunately, “I typed it on my phone and sent it to the family WhatsApp group” is not generally regarded as sound estate planning.
- Not Updating Your Will After Major Life Changes
Life changes. Your Last Will and Testament should too.
Marriage, divorce, children, grandchildren, significant purchases, and changes in personal circumstances can all affect your estate planning.
A Last Will and Testament drafted twenty years ago may not accurately reflect your current wishes.
If your Last Will and Testament still refers to assets you sold years ago, an executor who moved overseas, or a spouse who is now your ex-spouse, it may be overdue for a review.
- Choosing the Wrong Executor
Your executor has an important job.
They will be responsible for administering your estate, dealing with creditors, handling paperwork, and ensuring your assets are distributed correctly.
Choosing an executor simply because they are your favourite cousin or because they once balanced the family holiday budget may not always be the best approach.
Select someone who is trustworthy, organised, and capable of handling what can sometimes be a complex administrative process.
- Failing to Provide for Minor Children
For parents, one of the most important aspects of a Last Will and Testament is addressing guardianship.
If you do not nominate a guardian, decisions regarding your children’s care may ultimately need to be made by the courts. This is not a decision you want left to chance.
A properly drafted Last Will and Testament allows you to express your wishes and provide guidance regarding who should care for your children if you are no longer able to do so.
- Forgetting About Estate Liquidity
Many people focus on who gets what but overlook how the estate’s expenses will be, paid, for example Executor’s fees, debts, taxes, and administration costs all need to be settled.
If there is insufficient cash available, valuable assets may need to be sold.
Nobody likes surprises and your beneficiaries are unlikely to be thrilled if the family holiday home has to be sold simply because no one planned for the estate’s expenses.
- Naming Witnesses as Beneficiaries
This is a surprisingly common mistake, having a beneficiary witness your Will can create legal complications and may affect their inheritance.
To keep things simple, your witnesses should be independent individuals who have no financial interest in your estate, in other words, the person inheriting your sports car should probably not be the witness when you sign the Last Will and Testament.
- Keeping Your Will in an Inaccessible Location
A Last Will and Testament cannot be administered if nobody can find it. While hiding your Last Will and Testament in a “safe place” may seem sensible, it becomes less useful when nobody knows where that safe place is. Whether it’s in a safe, with your attorney, or another secure location, ensure that your executor knows where the original document can be found. The goal is estate administration of your estate and not an elaborate scavenger hunt.
- Attempting a DIY Will Without Professional Advice
The internet has convinced many people that they can become experts overnight. While DIY Last Will and Testament templates may seem convenient, estate planning often involves complex considerations that generic forms cannot adequately address. A small drafting mistake today can result in significant costs and complications later, like your Last Will and Testament not being accepted by the Master of the High Court and your estate being wound up intestate anyway, much like cutting your own hair before an important event, it may seem like a good idea at the time but the consequences can be longer lasting than expected.
Final Thoughts
A Last Will and Testament is one of the most important gifts you can leave your loved ones. It provides certainty, reduces the risk of disputes, and helps ensure your wishes are respected.
A properly drafted and regularly updated Last Will and Testament can save your family significant time, money, and stress. After all, your legacy should be remembered for the life you lived not for the administrative chaos you left behind. If you have not reviewed your Last Will and Testament recently, or if you do not yet have one, now may be the perfect time to do so.
Your future executor will thank you, even if they never get the chance to say it.
Gabriella Assante
Attorney & Notary
