Why should you update your Last Will & Testament?
The importance of a Last Will & Testament and especially one that is updated to reflect your current wishes can never be underestimated.
The current debacle between Amor Vittone and her late husband Jooste van der Westhuizen’ s deceased estate is the most recent example that springs to mind. Amor is disputing the validity of her late husband’s Last Will & Testament in which she is completely excluded. By doing so she hopes that a Court will revert to his previous Will in which she inherits part of his Estate.
Unfortunately and more often than not, it would be very difficult for a spouse, life partner, your children or other family to convince a Court after your passing to change your Last Will & Testament, as it is generally accepted that it reflected your most recent wishes and further that it was done whilst you were of sound mind. So depending on the manner and at the time that your Will was originally drafted, it might be time to have a look if it still reflects your wishes. If you do not have one ... this might be the right time to get one.
If you die without a Will, your Estate will devolve in terms of the Intestate Succession Act. In terms of this Act your family will still fully benefit but possibly in a way that you did not envision. Besides this, the entire process is lengthy and sometimes unnecessarily prolonged at a time when your loved ones merely want closure. Due to these delays, they may suffer or struggle financially, emotionally and most certainly unnecessarily.
Life is consistently changing! We enter into relationships, we might get married or have children and those children then grow up to have children too. We might buy property, make investments or start a business. Family members might retire or even become ill or disabled and they may then become dependent on you. It is therefore of vital importance that whenever a major change in our life occurs, that your Last Will and Testament should also be updated to reflect our wishes at the time of our death and not one that is outdated. Drawing up a Last Will & Testament is not a once off matter and it should be updated whenever major changes occur in your life.
To highlight just a few of the very important reasons to ensure that you have a will and also that it is updated when necessary, the following should be taken into account:
1. Your Children and their Inheritance
One can never emphasise enough that having children creates major changes in your life. As parents, we want to ensure that our children are taken care of. First and foremost, you would surely want to decide who takes care of your minor children when you are gone. If this is not provided for, the Master of the High Court will appoint someone to take care of or administer the property of your minor children and their inheritance will go to the Guardian’s Fund.
2. The Executor of Your Estate
By taking the necessary steps to ensure you have a Last Will & Testament, you would personally be able to decide upon the executor of your estate. The chosen executor is the individual in which you place your trust to ensure that your estate is properly wound up and your wishes adhered to. If not, then the Master of the High Court, a stranger who had no insight into your life and wishes, will decide this for you.
3. Moveable & Immovable Property
With respect to movable property which includes furniture, vehicles, jewellery, family heirlooms, etc. as well as immovable property which includes your family home, holiday home or other properties, you would surely want to know that these are handed down or the proceeds thereof divided as per your wishes. With a Last Will & Testament you decide who will benefit from same.
Therefore, it is of extreme importance and especially when immovable property is purchased that your Last Will & Testament is also updated if needs be. Does the prior will make specific provision for your wishes regarding the new property? In the event that it differs from previous wishes or distribution, it is advisable to have your will updated at the same time as finalising the property transaction.
4. Family Relationships, Disputes & Divorce
Did you get divorced, remarried or are you in a long-term cohabitational relationship? Does your Last Will & Testament reflect your most recent wishes in terms of the prior and most recent heirs of your estate? In this day and age many people live together in relationships and as life partners, or become divorced and enter into new relationship or marriages or have other children without giving a second thought to the fact that their Will might not make provision for their partners and all children in the event of their death. As a result, this causes complete upheaval and unfortunately is one of the biggest reasons for disputes, sadness, losses and even litigation between loved ones after a death.
We also grow wiser with the years. We might have made a bad or irresponsible decision relating to our estate when we were younger, or based such a decision on an emotional event in our lives at the time of doing so. Perhaps when you originally drafted your Will, it woes done without considering the effect it would have on your family later on. You might have been in a dispute with a spouse or family member at the time, which later became resolved. Therefore, it is always important to ensure that you discuss such matters with an attorney for advice and guidance instead of making emotionally charged decisions relating to your estate.
5. Elderly Parents, Disabled or other Dependants
Are you caring for a disabled family member, have your parents retired or may they become dependent on you? Does your will make provision to continue to care for them in the event of your death? This should never be overlooked as it is unfortunate that many times disabled or elderly dependents are often neglected after the death of their caretaker by the other heirs of your estate, if no specific provision is made for them.
6. Starting a Business or making a major investment.
Have you embarked on a new business venture or made a major investment? Does your Last Will & Testament make provision for the management thereof and/or your successor in your business in the event of your death? This should never be overlooked, as your death may result in your business being liquidated, sold or mismanaged after your death which will leave your hard work in tatters and loyal employees may suffer. It is also a good idea to ensure that all investments and or shares in any businesses are recorded to ensure that your surviving family members are aware of these in the event of your death.
It is for the above reasons that we religiously assist our clients in documenting their wishes, so that their life’s wishes play out in the way that they had planned after they are gone.
This brief article only serves to highlight the major reasons why it is necessary to have a Last Will & Testament. There are so many factors that should be taken into account when drafting your Will and of which the obvious one being the Tax implications.
Please contact our offices to speak to an attorney if you need advice or assistance in drafting your Last Will & Testament and to ensure that your wishes are documented in a manner that is legally compliant, financially smart and to avoid any dispute that may arise between your loved ones after your death.
