A badly drafted or outdated will can leave your loved ones with unintended consequences long after you are gone.

Local attorney Lauren le Roux, a director at Meneses Le Roux Inc, has 10 years’ experience specialising in wills and estates. She highlights common seven mistakes to avoid.

1. Not having a will
The biggest mistake is not having a valid will at all.

“About 65% to 70% of South Africans do not have a valid will in place,” said Le Roux.

“Don’t think that not owning property excludes you. If you have a bank account or a car, you should have a will in place.”

2. Using inappropriate witnesses
Choosing witnesses incorrectly can create serious problems.

Le Roux said beneficiaries should not witness a will and children under 16 cannot legally act as witnesses.

“No one who stands to benefit from your will, including service providers, can witness your will and doing so will result in your will not being legally valid.”

She also cautioned against drafting your own will without understanding the legal requirements.

“There are so many legalities to be aware of that stem from over a hundred years of case law. Drafting your own will puts you at risk.”

For example, the gap between the body of the will and the signatures (on each page) must be no more than 5cm apart. An error of this nature could affect the validity of a will.

3. Letting your will become outdated
Your will should change as your life does, particularly after marriage, divorce, births, deaths or significant changes in assets.

“You are writing a document to speak for you when you are no longer here. Make sure that your will is updated regularly,” said Le Roux.

She referred to a recent case in which a man’s will still named his ex-wife as his primary beneficiary, leaving his new partner out.

4. Choosing the wrong person
Choosing who drafts and administers your will can have significant consequences.
“Find an attorney who does wills for a living and knows what they are doing,” said Le Roux.

She cautioned consumers to understand who will ultimately administer their estate and what fees or conditions may apply.

“It is not uncommon for estates to take between three to nine years to be wrapped up when the wrong people are handling them.”

5. No one knows where your will is
Make it easy for your family to find important documents when they need them.

Le Roux recommends keeping a file containing your will and copies of your ID, marriage certificate, antenuptial agreement, children’s birth certificates and IDs and relevant property documents.

“The death has to be reported by the executor to the Master’s office holding jurisdiction (nearest to where the deceased resided for the majority of the last year of their life) within two weeks and trying to find all these documents in that time can cause considerable stress for those who are grieving.”

6. Being too specific – or too vague
Listing every possession individually could make administering your estate unnecessarily complicated.

“After death all assets with their date of death valuation need to be reported as part of the administration process. If an asset doesn’t have an overt easily-assessable market value, a valuator needs to be appointed to determine this.

“You don’t want to end up paying valuation costs for low-value items. Be specific about high-value sentimental items, like a diamond ring.”
For less significant possessions, she recommends keeping a separate letter of wishes with the will.

She also warned against vague wording, which can create uncertainty about beneficiaries, assets and bequests and potentially lead to conflict.

7. Poor planning for minor children
This includes how their inheritance should be managed and whether a testamentary trust is appropriate.
“The guardian’s fund is a government fund where the inheritances of minor children (under 18) go if a will doesn’t create a testamentary trust or a suitable adult to look after the inheritance.

The information in these articles is intended as a general guide and should not be considered legal advice. Consult an attorney of your choice for advice relevant to your circumstances.