Many of us are aware of the importance of having a valid Last Will & Testament. It is also well-known what information and instructions are essential to include. However, what many people are unaware of is the information and wishes which are ill-advised and should not be included in your Will. A vital part of efficient and effective estate planning is having a Will which allows for a smooth and seamless estate administration process after your passing. Here are five key points to consider before drafting or updating your Will.

Passwords and login details

The security of your assets should not be compromised. Your Will becomes a public document as soon as it is lodged and accepted by the Master of the High Court after your passing. This means that any member of the public may apply for a copy of your Will using the Department of Justice JM46 form. If your Will contains the usernames and passwords for your accounts this may result in some of your assets being stolen before your executor has even had a chance to process them.

As a side note, for those who invest in the crypto sphere, you will know that crypto wallets store the keys to your assets. If your executor is not provided with your private key after your death, those assets could remain in the crypto verse forever. However, should you keep your crypto assets in a third-party custodial wallet, your executor will be able to gain access, as long as they are aware of the asset.

Clauses that go against public policy and/or the Constitution (108 of 1996)

South African law prohibits the inclusion of clauses or conditions in Wills which go against public policy or the Constitution. Should your Will contain an unconstitutional clause, this will not invalidate your entire Will, it will just be that clause which is not enforced. Examples would be clauses which go against the beneficiary’s rights in terms of our Bill of Rights. An example seen in practice is where the bequest was conditional upon the beneficiary marrying someone of the opposite sex, with the consequence that should they marry someone of the same sex, they will relinquish their right to the bequest. This clause in unenforceable in South Africa, and the beneficiary would be entitled to their inheritance regardless of who they married.

Insurance policies payable outside of your estate

Pensions, provident funds and annuities which have a specific nominated beneficiary are not dealt with in your Will, instead they are governed by the Pension Funds Act. When you take out a policy, you’ll be required to complete a Beneficiary Nomination Form and, in the event of your death, the policy will be paid out to the nominated beneficiary. However, although the onus falls on the retirement fund trustees to identify your financial dependants and apportion the proceeds accordingly, you can stipulate in your Will that any proceeds due to, say, your minor children should be paid to the trustees of a Testamentary Trust, created in your Will.

Do not list absolutely every single thing you own

A separate document which you can sign and keep together with your Will is what is called a ‘Letter of Wishes’. Should you have items which you’d like to leave to specific persons, rather list these items and persons in your Letter of Wishes. It will inevitably become an administrative nightmare for both your family and your executor if you were to choose to list these items in your Will. That is because both a valuation and an Heir’s Receipt will need to be obtained for each and every item. If they are listed in your Letter of Wishes they will simply be distributed after your passing without any time-consuming (and possibly expensive) administrative fuss.

More than one executor (and executors that reside overseas)

As a final point, we wish to advise against having more than one nominated executor in your Will. We also advise against nominating an executor who resides overseas. This too can create an administrative nightmare where delays are caused due to disagreement between executors and/or needing original signed documents couriered around the world before they can be submitted to the Master. A far better choice would be to appoint a professional executor, such as Appleton, to be the executor of your estate.

Just as there are many important clauses that should be included in your Will, we have also come to learn that there are many which should be excluded.

Should you wish to find out more on this topic, please feel free to contact Appleton Fiduciary Services on 0800 50 60 70.