Fiduciary Services

Does your family structure impact the way you draft your will?

It is important to have a valid, signed will so that your final wishes are known and your family is fairly provided for. There is a mistaken belief that wills are only necessary for people with a lot of assets. Considering the entire population, about 80% of South Africans don’t have a will. Many see it as a complex and expensive process, but it isn’t! It is also vital to keep your will up to date, adapting it whenever there is a major life event – such as marriage, divorce, the birth of a child or the death of a beneficiary – or a change in financial circumstances.

The basics of drafting a will

A valid will needs to be in writing and signed in front of and by two competent witnesses who do not stand to inherit from the estate. Sanlam has a selection of free will templates, tailored to suit specific family structures – but it is important to work with a professional such as a lawyer, wills consultant or financial adviser if your needs are more complex.

Things to keep in mind

Death may have an expensive price tag

Sanlam Trust found that over 40% of the deceased estates it administers have insufficient cash to cover all debts, costs, cash bequests and taxes payable during one’s lifetime, and income tax, capital gains tax and estate duty upon death. This may have serious consequences for loved ones left behind. Planning for these costs through a policy such as the Sanlam Legacy Plan can alleviate these extra financial stresses.

22% of respondents in Sanlam Trust’s survey belong to the "Blended families" group

South Africa’s rainbow nation of families: Nuances to consider when drafting a will

Divorce settlement:

Often, partners come from previous relationships that ended in divorce. It is important to know what is in the divorce settlement(s) and how that affects a new marriage.

Marital regime:

Are you married in or out of community of property? If out of community, including the accrual system in your antenuptial contract or not? Who owns which assets?

Beneficiaries:

Stepchildren do not stand to inherit unless you expressly stipulate as such or adopt them as your children. You need to be explicit with your wording to eliminate any confusion. If your stepchildren are excluded from your estate but can prove they were financially dependent on you, they can claim from your pension fund.

Adopted children:

Adopted children have the same rights as biological children. Should you die without a will, they will be regarded as your children in the intestate process.

Divorce:

If you have a joint will, or a will that nominates your ex-spouse to inherit, you have 90 days after your divorce to amend this. Otherwise, your ex-spouse still stands to inherit.

A very special pet:

14% of respondents didn’t have children, but they had fur kids. Leaving everything to a beloved pet is complicated. If you want to make provision for a pet you need to consider the following:

Who will look after your pet? Are they going to take in your pet as its ‘guardian’? Or is the expectation that the person will move into your home to care for your pet? If so, have you left sufficient funds for rates, taxes and the upkeep of the family in your estate? Will the guardian inherit your house (as you cannot leave this to your pet) or will the property go into a trust? You need to be clear in your will and financially provide for this, for the duration of your pet’s life.

Married couples:

It is advisable to have separate wills to ensure each spouse’s final wishes are carried out.
Whether you are married under the Marriage Act (monogamous marriages for opposite-sex couples) or the Civil Union Act (monogamous partnerships for same- or opposite-sex couples), your marital regime plays a major role. For example, if you’re married out of community of property excluding the accrual system, you can exercise freedom of testation and leave everything to your children. However, your spouse may still claim from the estate in terms of the Intestate Succession Act (if you don’t have a valid will) and the Maintenance of the Surviving Spouse Act.

Unmarried with a life partner:

Strictly speaking, there is no such thing as a ‘common-law spouse’ in South Africa, either in opposite- or same-sex partnerships. New legislation may soon be passed enabling an unmarried life partner to claim from a partner’s estate through the Intestate Succession Act and Maintenance of the Surviving Spouse Act. Recent court decisions granted certain rights to life partners that they did not previously enjoy. This may seriously delay the winding up of an estate, so it’s much kinder and fairer to include a partner in your planning.
According to the Sanlam Trust survey, 18% of respondents were living with a partner and 10% had children with their unmarried partner. It is important to plan together and make sure each partner is provided for. You can nominate your partner as the main beneficiary, or make your children your beneficiaries and plan for your partner elsewhere, through life cover, for example.

Providing for parents and other extended family members:

If you die without a will, your parents, siblings and other family members have no maintenance claim from your estate. However, if they can prove their financial dependence on you, they are entitled to claim from your pension fund.
Rather be explicit and stipulate in your will whether you want to continue supporting family members (in addition to your children and spouse).

Polygamy and polyandry:

Providing for multiple partners is complex and requires prudent planning:

If you die without a will, your estate will be divided among your partners (and your children) according to your marital regimes.
If you have a valid will, you can exercise freedom of testation over your share of the estate. However, the marital regime for each relationship will play a major role in how the estate is divided.
The default regime is IN community of property.