By Elize Kramer, Wills Drafting Manager FNB Fiduciary
In South Africa, we enjoy freedom of testation, which means individuals have the right to dispose of their assets as they wish after death, with minimal restrictions. Provided of course, no instructions contravene any laws. In addition, you have the authority to specify your chosen beneficiaries in your Will, which typically includes but is not limited to, family members, friends and charitable organisations.
However, with freedom comes responsibility and these instructions can easily become impractical. This often only becomes evident after the person has passed, and the executor must administer the estate in accordance with the deceased's instructions. When these instructions are impractical, it can lead to disputes and significant delays in finalising the estate as well as the distribution of funds and assets to beneficiaries. Some examples of (possible) impractical instructions:
It's essential to ensure that your Will aligns with your values and the law. Bequests that are contra bonus mores, also known as "against public policy", may be challenged in court and potentially invalidated, as it goes against the moral fabric of society.
Examples include:
The unintended consequences of impractical instructions
When drafting a Will, the intention is never to create delays and uncertainty when the instructions need to be executed, but unfortunately impractical instructions can have severe negative implications. For example:
Examples include:
How to avoid impractical instructions
Some tips on how to avoid impractical instructions:
Key Take-away
The importance of a Will drafted with clear and concise instructions must not be underestimated. The most challenging aspect of executing the instructions in a Will, is that the testator or testatrix is no longer around to clarify any instruction or convey their true intention behind a particular instruction. Speak to an expert and ensure your family will not be left with unnecessary difficulties when you are no longer around.
FNB Fiduciary (Pty) Limited Registration Number 1986/003488/07- A subsidiary within the FirstRand Group of Companies. An Authorised Financial Services Provider.
