Drafting a valid will is an essential part of responsible financial management. If you want to ensure that you’ve taken care of your heirs after your death, your estate planning must include a valid will that distributes the assets in your estate properly and legally.

There are many high-profile examples of what can happen if you fail to leave behind a valid will. Consider these cautionary tales:

• Michael Jackson
  The King of Pop left behind 3 minor children and a fortune when he died in 2009. He had put his estate into a trust, which managed how his assets were to be distributed. Unfortunately, the executors of the trust radically undervalued Jackson’s name and likeness, at only $2,000. This attracted the attention of the US Inland Revenue Service, resulting in a dispute about potentially hundreds of millions in unpaid estate taxes that has still not been settled.
  
  
• Howard Hughes
  The eccentric millionaire film producer, aviator and engineer died intestate in 1976, and his estate was finally settled only in 2010. Though in law the estate went to his surviving family, several people came forward over the years to lay claim, including a man who alleged he was given a handwritten will by Hughes after having picked up the millionaire on a Nevada highway and a woman who said that Hughes had married her in international waters in 1949. In the end the handwritten will was deemed a forgery, and the woman received an undisclosed amount to drop her lawsuit.

These examples show not only the necessity for a will, but also the importance of ensuring that it’s valid and, as far as possible, incontestable.

Conditions for a valid will

There are several factors that should be observed in drawing up a will to ensure that it is valid and remains so after your death. In terms of general legal requirements, you must be 16 years old or older, the will must be in writing, and you must sign it in the presence of at least 2 competent witnesses at the same time. The witnesses must also sign the will in your presence. Additionally, the will should clearly express your wishes about the distribution of assets and appoint an executor to administer your estate.

There are some other important factors to consider when determining whether a will is valid:

• Mental capacity
  The requirement that you’re mentally sound when in the process of drawing up and signing your will essentially means that you understand the consequences of your actions, and that you are not mentally ill or under the influence of any mind-altering substances at the time.
  
  
• Writing your will
  A valid will should be typed or handwritten. If it is written by someone other than you, it should be someone who will not inherit from your estate.
  
  
• Signature
  You must sign your will in full before it can be considered legally valid. ‘Sign’ can include writing your initials or (only in the case of the person making the will) the making of a mark. Witnesses must sign or initial the will – they cannot make a mark.
  
  
• Personal identification
  Many families have the same or similar names in different generations. Make sure that your will clearly identifies you.
  
  
• Heirs and beneficiaries
  These should also be clearly identifiable in a valid will, so that there’s no room for ambiguity or other claims on your estate after you’re gone.
  
  
• Revocation
  A valid will should have a clause that revokes any previous wills that you may have drawn up. If you die with multiple versions of a will in existence, you risk these wills being read and interpreted together.

Disputes over the interpretation or content of your will can arise, even if you think you’ve taken the necessary steps to make it valid. We advise that you consult a qualified attorney when you’re creating your will, to ensure legal validity.

Dying intestate

If you die without a will or your will is declared invalid, your estate will be distributed among your heirs in terms of the Intestate Succession Act. They might include family members whom you didn’t plan to include in your bequests. By drafting a will, you can ensure that only those you intend to benefit from your estate do so, and that they receive the amounts you want them to.

It’s advisable to consult professional estate planners about drawing up your will – not only to ensure that your will is valid, but also for financial planning advice about your estate and assets. If you’re ready to draft a will or want to know more about estate planning, chat to an experienced Nedbank professional by calling 021 416 6000 or send an email to ngts@nedbank.co.za.