Important clauses a testator should know of when drafting a will

Introduction

A Will is a legal document that sets out your wishes regarding the distribution of your property upon your death. Simply put, a Will is a list of instructions representing your last wishes as to what you want to do with your property upon your death.
You may draft your Will according to your needs, as there is no prescribed form, and therefore you can determine who can get your assets and keep your assets out of the hands of people you do not want to inherit.
Although there is no prescribed form for a Will, it is important that one knows what clauses to insert in a Will, besides the usual bequests and instructions, as well as the implications thereof. In this article, we will be discussing various clauses that people should be aware of when drafting a Will.

Appointment of an executor and/or trustee

An executor is responsible for administering an estate after the testator has passed on and may be nominated by the testator in his Will. It is the role of the executor to protect the assets of the estate and to ensure that assets are distributed in the manner set forth in the Will of the deceased.
The executor has a lot of responsibilities and obligations, and it is therefore important to consider such responsibilities and obligations when one decides on an executor for an estate. It is recommended that if the executor has no experience in administering estates, he should appoint an agent to assist with the administration of the estate.
Furthermore, a testator should be aware of the fact that an executor is entitled to a prescribed fee of 3.5% of the gross value of the assets in the deceased’s estate as well as an additional fee of 6% on income accrued or collected after the death of the deceased.
It is important to note that the Master of the High Court may require the executor to lodge a bond of security to the full value of the estate, unless the nominated executor is specifically exempted from furnishing such security by the testator in terms of his Will or the nominated executor is the deceased’s parent, spouse, or child. The bond of security protects the estate from any negligent acts of the executor. It is a demand bond; therefore, if the Master of the High Court calls for such security, it must be paid immediately.

Creation of a trust when leaving behind minor beneficiaries

Ensuring your children’s future financial security upon your death is usually done by setting up a testamentary trust. Parents and guardians opt to set up a testamentary trust by placing their assets into such trust upon their death for the benefit of, inter alia, minors who cannot inherit assets directly.
A testamentary trust is established in accordance with the requirements as set out in a testator’s Will and is a safe alternative to the Guardian Fund, which is administered by the Master of the High Court. Since the Will forms the basis of the trust document, it is important that the Will stipulates the terms and conditions under which the testamentary trust must be set up and administered.
When establishing a testamentary trust and, more specifically, when nominating the trustees of a testamentary trust, one should consider the relationship such trustees have with the minor children for whose benefit the trust is being established. Although the role of the trustees is to look after the minor children financially, the trustees need to administer and manage the funds of the trust for the benefit of the minor children while taking their best interests into consideration.

Testamentary marital exclusion clause

When drafting a Will, it is common for the testator to declare that any bequest made in terms of the Will is to be free of any community of property that may subsist between a beneficiary and his spouse. In simple terms, this means that the spouse of the beneficiary is not entitled to share in the inheritance, and therefore, bequests made in a Will that is subject to a marital exclusion clause are excluded from a joint estate and protected from a claim by the beneficiary’s spouse.
While the marital exclusion clause is effective against the spouse of the beneficiary married in community of property, it is important to know that such a clause is not as effective against the creditors of the beneficiary’s spouse.
In the case of Du Plessis v Pienaar NO and Others, the Supreme Court of Appeal held that when a joint estate is sequestrated, both spouses become insolvent debtors for the purposes of the Insolvency Act. Each spouse’s undivided interest in the joint estate, as well as any separately owned property or inheritance, will be used to settle the claims of the creditors of the estate. It was further submitted that the same would apply if neither spouse were insolvent and that creditors can claim any property belonging to either spouse, even if it is an inheritance subject to a marital exclusion clause, as the estate is merely a source from which the debt is recovered.

Survival clause and alternative beneficiaries

It is common for spouses to leave their entire estates to their surviving spouse; however, what happens when both spouses die at the same time? Where spouses who are each other’s heirs in terms of a Will die simultaneously, survivorship may be a crucial factor in determining the order of succession. That is why it is important to include a survival clause or nominate alternative beneficiaries in a Will.
A beneficiary (including a spouse) who has passed on before the testator or who dies simultaneously with the testator cannot acquire any rights or benefits from the estate. Only beneficiaries who are alive at the time of the testator’s death are entitled to receive benefits from the testator unless the Will provides otherwise.
Usually, a survival clause will be contained in the Will, which provides for a survival period of around 30 days as an accepted practice. Should the spouse not survive and die within the next 30 days, anything that had been bequeathed to the spouse will be distributed to the alternative heirs.
It should be mentioned that although a testator may nominate any person as his heir and therefore dispose of his estate as he pleases, such disposition must be lawful and not contrary to public policy, as recently confirmed by the Constitutional Court in King NO and Others v De Jager and Others 2021 (5) BCLR 449 (CC), see Herold Gie “TESTAMENTARY CAPACITY AND THE GOLDEN RULE” dated 17th Jun 2022.

Conclusion

A Will is an extremely important document, and a testator should know which clauses to include and exclude as well as the implications thereof. This will not only ensure that the Will correctly reflects the ultimate wishes of the testator but also to prevent unnecessary family feuds, allowing your loved ones to grieve peacefully.