A will is one of the most important legal documents you’ll ever sign, yet many people underestimate the level of care required to draft one correctly. In a recent interview with Moneyweb, Ian Brink, Chairperson of the Fiduciary Institute of Southern Africa (FISA), shared several common mistakes that can create confusion, delay the administration of an estate, and even result in costly legal disputes.
1. Be Clear and Specific
One of the biggest pitfalls is using vague or ambiguous wording. A seemingly simple phrase can have unintended consequences if it leaves room for interpretation.
For example, a bequest that refers to “everything in my garage” could unintentionally include valuable assets, such as a vehicle, instead of only the intended contents. Clear, precise language ensures your wishes are carried out exactly as intended.
2. Use Legal Terms Correctly
Legal concepts such as usufruct, usus, and habitation each have distinct meanings and legal implications. Using the wrong term can grant beneficiaries rights you never intended.
A common example is leaving a surviving spouse a usufruct over a farm when the intention was only to allow them to live in the farmhouse. A usufruct also gives the right to receive income generated by the property, which may significantly affect other heirs.
3. Review Your Will Regularly
A will should evolve alongside your life. Major life events—including marriage, divorce, the birth of children, or acquiring significant assets—should prompt a review.
Brink also highlights an important provision in South African law: if you divorce and pass away within three months without updating your will, your former spouse is generally treated as though they had died before you for inheritance purposes. However, after three months, an unchanged will could allow an ex-spouse to inherit again.
4. Plan Carefully for Minor Children
If minor children inherit directly and no testamentary trust has been established, their inheritance may need to be paid into the Guardian’s Fund, which primarily manages cash rather than physical assets.
Creating a testamentary trust within your will allows trustees to manage the inheritance according to your wishes until your children reach the appropriate age, providing greater flexibility and protection.
5. Don’t Forget the Residue of Your Estate
Many people allocate major assets such as homes or vehicles but fail to specify who should receive the remainder of their estate.
The “residue” includes everything left after debts, administration costs, and specific bequests have been settled. If you don’t state who should inherit the residue, it will be distributed according to South Africa’s Intestate Succession Act, which may not reflect your intentions.
The Value of Professional Advice
Brink concludes by emphasising that drafting a will is not a do-it-yourself exercise. Even small drafting errors can create uncertainty, increase costs, and lead to disputes among loved ones. Working with a qualified estate planning professional helps ensure your will complies with legal requirements, accurately reflects your wishes, and protects your family’s interests.
Final Thoughts
A well-drafted will provides more than just instructions—it offers certainty and peace of mind for those you leave behind. Taking the time to review your will regularly, using clear language, and seeking professional guidance can help ensure your legacy is preserved exactly as you intended.