Features of a Will

What should be included in a final Will and testament?

The clauses and the complexity of those clauses that would be included in your last Will and testament will depend on your circumstances, the size of your estate and the dependants you have at the time of making your Will. This article doesn't allow the scope to mention all possible clauses and all aspects that should be included in each, but some clauses that could be included are:

1. Revocation: You can revoke any or all earlier Wills (or codicils) in a later one. This is usually done to avoid possible conflict between Wills resulting in uncertainty about the testator's real intentions. You don't have to revoke an earlier Will if you don't want to, especially if it deals with separate assets that are not dealt with in your later Will. However, if you don't specifically revoke an earlier Will it will, after your death, be read together with the latest one and if they conflict with each other the latest one will automatically revoke the earlier.

   Sometimes, it can be important to revoke your earlier Will as soon as possible. Marriage or divorce will not automatically revoke your Will. However, your ex would be disqualified for a period of three months after the date of the divorce from benefiting from your Will unless it is clear from it that you intended them to benefit despite the divorce. After three months your ex will again be able to benefit from your Will. So, should you die without having made a new Will revoking the earlier, your ex might or might not inherit while that was not your intention.

2. Nomination of executors & trustees: You would need to appoint one or more executors in your Will to gather all your assets, pay your estate debts and estate duty, and distribute the balance of your estate to your beneficiaries in accordance with the instructions in your last Will.

   Where you've created a 'testamentary trust' in your Will, you would also appoint the trustees who must manage the assets held in the trust for the benefit of the nominated beneficiaries according to the provisions of the trust.

   You would normally provide for a replacement executor should your executor become unable to accept the appointment or continue as executor.

   There are many other provisions to consider for inclusion, such as whether you want to exempt your executors from having to set security to the Master of the High Court for the due fulfilment of their duties as executors.

3. Testamentary trust: Where you have minor children, you might want to set up a 'testamentary trust' in your Will that will be managed by the trustees you appoint (as explained above). In the 'testamentary trust' clause, you can determine how the trustees are to manage the assets and how the assets may be used to benefit the minor children until such time that they reach the age you determined for them to inherit their portion of the capital or assets of the trust.

4. Appointment of a guardian: Where you have minor children, if both you and the other parent of your minor children should die while they are still minors, you would need to consider the appointment of a guardian. Then you might also want to direct the Master of the High Court to dispense with the requirements of security setting by the guardian.

5. Legacies: You can leave a specific item, amount of money, shares or other asset to specifically named beneficiaries. These gifts are known as legacies and will be paid to the legatees before the rest of the estate is distributed.

6. Residuary estate: In this clause you determine what is to happen to the rest of your estate, after all debts have been settled and all legacies have been paid. There are a multitude of ways to bequeath the residue of your estate, for example, absolutely as an outright gift or subject to a condition or upon a trust.

7. Exclusion from community of property and accrual sharing: With a clause such as this you can ensure that the property or income devolving upon the beneficiaries under your Will, shall become their own free and unencumbered property irrespective of whether they are married or will marry in community of property. You can also exclude such property from any community of profit and loss or any accrual in terms of the Matrimonial Property Act 88 of 1984.

See previous article: Why make a Will

See next article: When to update your Will

Disclaimer: This article has been prepared for information purposes only and does not constitute legal advice, or a legal opinion. The practical application of the provisions of this article will vary depending on the facts of each case. The publication, author of the article and companies or individuals providing commentary cannot be held liable in any way.