One of the most read and discussed news stories of 2018 was that Amor Vittone, widow of Springbok star Joost van der Westhuizen, inherited only a television set. (Read the article here).
“Why does she have to be so greedy? Surely she can afford her own,” a reader commented on social media. Others felt the bequest was adding insult to injury. (By the way, according to some reports, the van der Westhuizens delivered three television sets to Vittone – albeit more like old Panasonics than hi-definition LCD plasmas…)
Regardless of what one thinks about the fairness or otherwise of van der Westhuizen’s will, the forgotten truth is that Vittone got much more than two television sets. At the time of his death, the couple were still married in community of property.
Vittone would therefore still be entitled to half of everything in the joint estate, regardless of van der Westhuizen’s explicit provision in his will that she should not derive any benefit from it.
“People have a lot of misconceptions about the practical implications of wills. That is why it is critical to consult with an expert when drafting your will. We see so many cases where the practical result is probably not what the testator (deceased) intended,” Mr Marais says.
Here are some things to consider when you draft your will.
Things you cannot do with a will:
- In many cases, it is impossible to completely disown a spouse or child who you are legally obliged to maintain. “One of the biggest assets in most people’s estate is their pension fund or retirement annuity. The Pension Funds Act stipulates that the trustees of the fund must distribute the funds to your dependants, whether you nominated them as beneficiaries or not,” Mr Marais explains.
The marriage regime is also important. If a couple is married in community of property, a spouse cannot disown the other spouse of his or her half of the joint estate. If a couple is married out of community of property but with accrual, the surviving spouse may still be entitled to the accrual regardless of stipulations in the deceased spouse’s will.
- You cannot make any rules you want to. Yes, it is your money and your will is the one document where you call the shots, but in law some rules are not allowed. “Courts will not entertain or enforce conditions in a will that go against public policy,” Mr Marais says. The public morals referred to are the morals of the time. In recent years, our highest courts have set aside testamentary provisions that offend today’s public morals, such as bursary schemes created in wills that are reserved for white students. It may have been acceptable at the time the will was drafted, but not anymore.
The van der Westhuizen/ Vittone matter poses an interesting question on this topic. According to media reports, van der Westhuizen stipulated that his children may not receive benefits from his estate if their surname is changed. “If this gets tested in court, a judge will have to weigh the right of individuals to take on any name he or she wants and decide whether such a provision offends the public morals.”
One can also go too far in trying to rule from the grave. “There is a limit to what you can control after your death. Certain conditions are also unenforceable. Think, for example, of a condition that someone may only inherit if they never smoke again. How will this be enforced years after the estate has been finalised?”
- Make a video with your last will or replace your will with a last-minute handwritten note. “The Wills Act has very strict formal requirements for a valid will. It must, for example, be signed and therefore in writing. There are also requirements for witnesses to your will.”
This you can, and probably should, do:
- Stipulate that any benefits received by your heirs or beneficiaries are excluded from joint estates in current and future marriages or civil partnerships. “If a mother bequests funds to her son who is married in community of property, his inheritance will form part of his joint marital estate. If his wife becomes bankrupt, for example, the inheritance will have no protection from creditors,” Mr Marais says.
- You can specify guardians for your minor children and set up a testamentary trust for them. “It could create serious uncertainty and family friction if there is no nominated guardian to look after your children. Similarly, a testamentary trust will ensure that your children are cared for financially until they are adults. You may appoint the trustees and set some conditions for the trust in your will, but it is crucial to consult with an expert on this topic,” Mr Marais advises.
- You may distinguish between bequests and other assets in your estate and use tools such as collation and usufructs. “Broadly speaking, you can make specific bequests such as a house or cash or shares to a specific beneficiary. The bequests will be distributed before the general heirs receive the rest of the estate,” Mr Marais says.
Many people also choose to make use of tools such as usufructs. An usufruct is a lifelong right to a property, although the person never owns the property. A common example is a father giving a property to a child, but usufruct over the property to his widow.
Collation is used where a beneficiary has received some prior benefit from the deceased which should be considered. “Say a parent wants to divide his estate equally between his three children, but he advanced R500 000 to one child to start a business some years ago. The parent may stipulate that this prior donation must be considered to ensure that all three children benefit equally. This is called collation.”
The van der Westhuizen saga which is continuing in courtrooms, is testament to the chaos and conflict a last will can cause. “It is more complicated than many people realise. Apart from the formalities and requirements of a will, the contents itself must be carefully considered and discussed with an expert to prevent problems,” Mr Marais advises.