Understanding wills, trusts

26 Feb, 2021 - 00:02 0 Views
Understanding wills, trusts

eBusiness Weekly

Arthur Marara

You are a hardworking person. You may have accumulated wealth, assets, and items of value.  One day, whether you like it or not, you are going to die, or become incapacitated. What is going to happen to those things when death comes? This question is answered by estate planning. A well-executed estate plan empowers you to legally specify your wishes and how you want them carried out. A well-designed plan will help avoid disputes that may arise when a person dies, and consequently protect your family’s private financial affairs.

I trust that by now you have read my article, “IS YOUR HOUSE IN ORDER? — PLAN YOUR ESTATE”. If you missed, write to me, I will be happy to share the same with you. In that article I shared the importance of planning your estate. I trust we all now appreciate the importance of estate planning. The two main ways for planning your estates are;  having a will, and a trust in place. In this article, I am going to deal with common questions that arise on issues to do with wills. In the next one, I am going to address issues that arise from Trusts.

A will is one of the most important legal documents that a person can ever write thus there is need for greater care and clarity so that your wishes will be clearly seen from the document itself.

The will therefore has to conform to set standards in terms of the law if the contents are to be enforced.

A will that will be deemed valid is one that adheres to the requirements stated in the Wills Act and the common law and these requirements shall be discussed in due course. Once a Will has been written and executed properly in terms of the law it becomes binding. It is impossible for anyone apart from the testator himself to change that will. The usual practice as you will see from the standard clauses is to put an alteration clause which gives the testator these powers. This prevents the forging of wills by voracious property grabbers.

Demyistifying wills and will writing

Few people feel comfortable to discuss about their mortality and consequently wills. Having a will does not mean that your death is imminent. Having a will is just as good as having a Medical Aid scheme or Legal Aid Scheme. It does not mean that you are going to get sick or you are going to be sued today or tomorrow. It simply assures you that in case you get sick or you are involved in something legal and need assistance you will be covered respectively most of the time. The time each one of us is to pass on is unknown thus the need to be prepared.

Some people are afraid of writing wills fearing that they might be killed by the people they have made beneficiaries in their wills. This is not always true as no-one will access your wills if it is professionally written and kept.

We shall discuss later on the issue of safekeeping of Wills and Trusts. The law provides that anyone who is responsible for killing the testator cannot benefit from the Will. When writing a will there is no need to tell anyone though people must know of the existence of one. Furthermore there is no legal obligation on the part of the testator to reveal the contents of the will to any one and this ensures maximum security on the part of the testator.

The Will gives you the opportunity to express your wishes as far as your property is concerned. There is usually mistrust amongst couples particularly on the issue of remarrying when one of them is dead. Generally if the couple remarries there is a possibility that the inherited property can form part of the joint estate of the subsequent marriage or fall in community of property of the marriage if there is an ante-nuptial contract or a customary law marriage thus making the property fall under the marital power of the husband.

The will can be written in such a way that it will protect the inherited property from falling in community of property of a subsequent marriage of the beneficiaries. Read section on standard clauses (in the following articles) where we deal with the “protection clause”.

Frequently asked questions

There are questions that people are asking frequently on the subject of Wills and Trusts. I will try to respond to the common questions that are asked on this subject.

What is a will?

A will is a written document, prepared in terms of the law that specifies how you want your estate to be administered in the event that you pass on. A valid will has to be executed in terms of certain formalities in terms of the law.

Who can write a will?

Any person who is sixteen years and above is competent to write a will. The age of 16 is generally regarded as the common law age of consent and also the fact that the person will be having a better appreciation of the nature of the act. Since appreciation is of the very essence it means that people without the requisite appreciation are disqualified from such acts and these include minors, insane people among others.

Which language may be used in writing a will?

A will can be written in any language e.g. Ndebele, Shona, English etc. and you can personally do it. It is not a legal requirement that you use legalistic language when drafting your will. Greater clarity is called for as there would be no person to clarify your will when you die and also the fact that courts respect what is called freedom of testation that is the wishes of the testator. The courts do not usually want to appear as if they are making a will on behalf of a person by being greatly involved in the interpretation of a person’s will.

Do I really need a will?

This is the question many people ask. Daily people are dying without wills. There is a list of some celebrities who died intestate i.e. without leaving a will or any testamentary disposition.  Prominent examples, include the famous musician Prince who died in 2016, and left behind an estate estimated to be around $300 million. He had no will with all his wealth. The estate is yet to be finalised.

There are even more examples of people who died intestate, Amy Winehouse is one of them. Bob Marley also died intestate, and 30 years later after his death, his family members were still suing each other arising from estate disputes.  What this shows you is that their houses were not in order.

If a person dies without making a valid Will they would have died ‘intestate’. Their assets will be distributed in terms of the Administration of Estates Act, and other statutes. Your property may not end up going to the people you really wanted to benefit from your estate. There is tendency for inheritance wars amongst the family members, and this can only be prevented by having a will in place.

The following are some of the main reasons why you need a will;

  1. They allow you to distribute assets as you wish, not as the law of descent decrees.
  2. They reduce costs and time of settling an estate. Inheritance matters can cost a fortunate.
  3. You can name your own executor/executrix of the will to save time and money

4.You can name a guardian for minor children

  1. You can establish trust funds
  2. The family can avoid internal conflict among its members
  3. Can be amended at any time

Do I need a lawyer to make a will?

There is no legal requirement that a will be written by a lawyer. If your will is not complex, you can do it on your own.

A will is a legal document as explained earlier, hence it has to be done in strict compliance with the provisions of the law, as this can affect its validity. If the will is wholly disregarded, it means your estate will be treated as intestate. Writing a will not cost you much hence you may need to invest in one having drawn up for you.

When does it start to work?

A will only starts working once you are dead. This explains why there has to be serious care and caution in the preparation of your will. You will not be there when it will be read out, and your wishes and intentions must be spelt out and clearly.

What property may be distributed in terms of the will?

As a general rule any property can be given in a will. A person can only bequeath property that he or she owns.

In case of immovable property, the one he or she has title over. You cannot give away property that is registered in the name of another person. Such a will a will can be nullified on the grounds that it violates the rights of another person.

The courts have the interpreted Section 5 (3) of the wills Act with regards to married couples to mean that if husband and wife are married out of community of property, either of them can dispose any property that is solely registered in that spouse’s name. However if husband and wife are married in community of property, it creates a joint ownership of the property such that no spouse can unilaterally dispose or alienate jointly owned property.

Where the marriage is in community of property, the husband is the administrator of the joint estate during the subsistence of the marriage. This does not give such a husband the license to write a will bequeathing jointly owned property without the consent of the wife. If that happens the provisions of such a will run foul to section 5(3) of the Wills Act and are null and void.

Can you disinherit your spouse?

The answer to this is answered by the question above. The Supreme Court confirmed recently that any property can be given away in a will if the parties are married out of community of property.

Can you disinherit a child?

The obligation of the testator is to provide for maintenance for the minor children. The estate has to make provision for this. The question is similarly answered by the law on property, you can give away property to anyone as long as you own it.

Can a will be challenged?

Yes, it can be challenged if it does not meet the requirements in terms of the law. Furthermore, if you give away property that is not yours, your will can be challenged.

What is an executor?

An Executor is a person who you nominate to take on the responsibility of dealing with your estate.

Who should be an executor?

An Executor is a person aged 18 or over who you trust to deal with your estate. You should appoint more than one Executor. It can be an onerous task and someone with experience who is able to handle accounts and paperwork is the best option. It is a time-consuming role. You may need to have a professional executor to be appointed in order to benefit the beneficiaries.

Is an attorney allowed to see my will?

If you have prepared your own will, you are under no obligation to show your lawyer the contents, however, it is in your best interests that they need to see your will. You stand to benefit from professional help.

Did you know?

It is likely unless there is a clause within your will stating otherwise, that your will may be ineffective or partially in force in these situations:

◆When you get married

◆ If you are later divorced

◆ After the creation of a later will or codicil

◆ Damage to your will so that it is illegible

This is why you need to have your will regularly reviewed and amended if necessary..

The next articles will cover on the essential requirements for a valid will.

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

 Arthur Marara is a corporate and family law attorney. As an attorney, he has worked over the years on matrimonial matters including but not limited to divorces, maintenance, custody and guardianship issues. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263718867255 or email [email protected]

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