Yet, many people believe they can write their own Will effectively.
“If you insist on writing your own Will, the very least you should do is have it checked by a suitably qualified professional,” says Sakkie Burger, of VDT Attorneys.
Here are real-life examples of how things went horribly wrong when people made common Will mistakes:
- Forgetting the debt – Campbell v Daly
Mr. Campbell thought he was a responsible man. After his divorce, he drafted a Will in 1981 leaving his entire estate to his two minor children. He fell in love again and got engaged. Again, Mr. Campbell did the responsible thing to update his Will for his changing circumstances. He executed a codicil to his Will which states:
“I do hereby give and bequeath as a pre-legacy all my right, title and interest in and to (a certain townhouse) to Miss Lynda Aileen Daly…”
For a layman, this may sound perfectly clear. Mr. Campbell wants his fiancée to have the townhouse and his children the rest. If only.
Mrs. Campbell, the mother of the two minor children, and Daly, the new wife, spent years locked in court battles about the meaning of those words. Ms Daly said she was entitled to the house. Mrs. Campbell said the stepmother is only entitled to the “interest” Mr. Campbell had. The townhouse was worth R77 000 and he still owed R63 010, meaning Ms. Daly was entitled to only R13 990.
Ms. Daly eventually lost on appeal.
“We still see these kinds of mistakes in Wills,” Burger says. “People sometimes use pro forma Wills downloaded from the internet. They contain many complicated words which sound clever, but people don’t really understand their impact. It is a common mistake not to be clear about outstanding debt. If it is your intention that your estate must first pay off the bond before transferring the property, you should make it clear.”
- The typo and missing words – Aubrey-Smith v Hofmeyr
We’ve all done it. Sending an e-mail with a few words missing. If you’re lucky, the recipient will still gather exactly what you meant. With a Will, such a common mistake may cause you endless legal headaches.
In this case, the testator stated: “I nominate, constitute and appoint my husband to be the executor of this, my Will, guardian of my minor children, administrator of my estate of whatsoever kind and wheresoever situate.” (sic)
She went on to say that if she and her husband died together, a whole new set of stipulations would kick in.
The only problem is that she never actually stipulated that her widower should inherit anything. Merely that he should be the executor and be the guardian of the minor children.
The person who drafted the Will even submitted an affidavit to court clarifying that “an error” crept in, but the court held that the words in the Will could not be changed. Only on other grounds did the court agree to insert the words “sole heir of my estate” to the description of her husband.
- Letting your emotions get the best of you – Ex Parte Dessels
For some, a Will is not just a practical document, but an emotional expression of wishes and desires.
In popular culture, a testator will often disown an adversary in a dramatic fashion or set conditions in the Will that lead to a whole new storyline.
“It is quite possible to let your emotions get the best of you when drafting a Will,” says Burger.
Mr. Dessels, who died in the 1970s, was clearly a controlling man. He left certain assets to his wife and daughter, but set the following conditions:
- His wife should not follow a way of living which could be regarded as indecent.
- His wife should not permit any strangers to live with her, unless they could be considered to be merely visitors, in which case they were allowed to stay no more than a week. No male could ever be viewed to be a visitor if not accompanied by his wife.
- His wife and daughter should not utter or write any derogatory remarks concerning him after his death.
A tall order, it emerged from the ensuing court battle. Even for the 1970s, the conditions were too much for the judge. The first condition was upheld, but the second and third were declared void by the court based on vagueness and public policy. Mr. Dessels would have turned in his grave if he knew male visitors were allowed.
“There are common misperceptions in what you can and cannot stipulate in a Will. What sounds perfectly logical and fair to you, may not be enforceable,” Burger advises.
“Another example we often see is that a spouse will rather leave certain assets to his or her children than the surviving spouse, ostensibly to ensure that they are cared for even if the surviving spouse remarries.”
“But people don’t always appreciate the practical effects of what they stipulate. Do you understand what the implications are if you leave half the house to your child in a trust? Your spouse will not be able to do anything with his or her half without the approval of the trustees and the surviving spouse will not be able to assist the minor in transactions that would benefit him or her.”
“It is best to talk to a professional who is qualified in drafting Wills and with experience in administering estates. Tell them exactly what you hope to achieve with your Will. A good drafter will give you the necessary tools to do just that.”
Contact Sakkie Burger on 012 – 452 1300 to avoid life-changing mistakes in respect of your Will.
© VDT Attorneys, June 2019