Judge warns: "Don't use untrained advisers to draft your will"

The cost of getting your will wrong

Monique Vanek

24 June 2012

Judge warns against using untrained advisers to draft your will.

JOHANNESBURG - Dealing with the death of a loved one isn't easy but it can be made harder if they never drafted their will or drafted it incorrectly.

Judge Leach in his June 1 ruling over a contested will warned: "It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. This is by no means a recent phenomenon. Some 60 years ago, in Ex Parte Kock NO,1 a High Court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die . . . to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions'. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case".

In this case the testator - the deceased Dr Raubenheimer - made two mistakes in drawing up his will in which he bequeathed his estate to his spouse, Piet Nel, project director: Tax Suite at Saica told MoneywebTax in this month's Integritax Podcast.

Dr Raubenheimer did not sign his last will (testament) in the presence of two witnesses as required by the Wills Act and he did not attach a list of assets referred to in his will together with the persons meant to inherit it, says Nel.

As a result Dr Raubenheimer's children were able to contest that their father's will was invalid and claim he died intestate - without a legal will. A view the Gauteng High Court supported.

This meant that Raubenheimer's surviving spouse had to appeal the court's decision to order the master to accept the will as her husband's last will and testament.  To do this she had to prove (and was successful in doing so) to the Supreme Court of Appeal that the document was intended to be her husband's last will.

Nel says the Raubenheimer case demonstrates the importance of following the correct legal procedures when drawing up your last will and testament as failure to do so could lead to a long and costly court battle - the Raubenheimer case took five years to settle.

It could also lead to huge estate duty implications and trigger capital gains tax. For example, in the Raubenheimer case if the estate had gone to the spouse no tax would have been payable, if it went to his children there would have been capital gains tax payable by the estate.

Nel suggests if you don't know what the correct procedures are make use of professionals.

He also recommends you get a second and third opinion and read as much as you can about wills before drawing up your own.

Know what the Wills Act says about the minimum requirements needed in drawing up a will, he adds.

For those wanting to keep abreast of these and other developments, Saica recently launched a web-based Tax Suite available for an annual subscription fee of R1 499 to non-members and R899 for existing members.

Write to Monique Vanek: monique@moneywebtax.co.za
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