Opinion: Errors in wills affect management of deceased's estate

This week, I want to reiterate the critical importance of writing wills, especially for the upcoming affluent and those with complications in their affairs. The latter do not need to be wealthy to put their wishes down!

As I promised at the beginning of this year, every so often I will divert from politics and the law to discuss a most critical issue; preparing for inevitable death. So far, I have discussed the preparations necessary for old age and introduced the matter of preparation for death.

This week, I want to reiterate the critical importance of writing wills, especially for the upcoming affluent and those with complications in their affairs. The latter do not need to be wealthy to put their wishes down!

More specifically I intend to discuss five errors people making wills commit that complicate management of their estates.

The first issue is form. By law, there are certain basic requirements that a will needs to conform to for it to be valid. These include having two witnesses to the execution of the will or naming more than one executor or trustee in the will where beneficiaries include minors.

Nothing is as frustrating as finding a well written will which has to be discarded because its maker failed to comply with basic legal minimums.

Any average lawyer can advise one on such requirements in the event that a person does not wish to use legal counsel for the making of the will. In at least two situations have had to discard well written wills because they had not been properly witnessed.

AUTOMATICALLY ENTITLED

Secondly, many wills are declared invalid or are opened up and revised by courts when their makers fail to make provision for persons who were their dependents during their life. The majority of these tend to be children obtained outside the boundaries of legally recognised relations.

Many people who acknowledge and support their natural children in life fail to include them as beneficiaries in their will, either out of fear or shame.

Invariably such children will be brought into the estate by the Courts, thus complicating the management of the estates’ affairs.

It is important for one to familiarise themselves with the law that prescribes the persons deemed to be automatically entitled to one’s estate and to ensure that they are included in the will. The will could alternatively explain the reasons for their exclusion. Sometimes, such dependents will be excluded because they received gifts intervivos; during the life of the deceased.

Thirdly, many makers of wills commit major errors in the persons who they choose as executors or trustees in their wills.

 The choice of an incompetent executor or trustee however noble they may be, or the choice of someone with significant baggage with the intended beneficiaries is bound to create challenges. I generally advise persons with substantial estates to use institutionalised trustees instead of naming friends and relatives.

Often times, the beneficiaries accuse such persons of personal interest in the estate in a manner deemed prejudicial to the estate. Family fights involving trustees and executors have neem known to leave family scars through generations.

LOSE MEANING IN BREVITY

Fourthly, wills that are imprecise in their intentions invite courts to “clarify” the intention of the testator. Certain nuances that a person may subjectively intend to apply to their estate are lost in the third-party interpretation.

Since one will not be there to clarify what they meant when they were writing their will, it is advisable to leave nothing to conjecture when writing wills. It is better to be wordy than to lose meaning in brevity.

Finally, it makes no sense to write a great will and then hide it so well that it is never found after death.

Even where wills are deposited with law firms, it is important that someone, usually the executors, is made aware of this fact so that upon death the beneficiaries know where to commence this difficult process.

Many lawyers have wills in their safes with no knowledge that the makers passed away! The estate is then dealt with as an intestate one. This is cruel on those left behind.

Nothing expresses care and concern to one’s family than ensuring that to the extent that it is humanly possible, arrangements have been made for easier transition. Over to you.