Is your will watertight?

by | Jun 11, 2015 | Advisory Services

A true case study – Current

Mr. A and Mrs. B had a joint will drafted in 1987. Mr. A passed away in 1991 leaving the residue of his estate to his surviving spouse. Mrs. B did not draft a new will after her husband’s death and survived him by 22 years.

The Master of the High Court is able to provide a certified copy of the will, the interpretation of which creates confusion within the family. The reason for this is clause 4 of the will which reads as follows:

“Should we die simultaneously, or so soon after one another that it was not possible for the survivor of us to draft a new will, or if it is not possible to establish who of us died first, we then bequeath the residue of our estate to X, Y and Z.”

An opinion was expressed to the family by a third-party stating that this estate will devolve in terms of Intestate Succession because of the wording “or so soon after one another that it was not possible for the survivor of us to draft a new will”. The person is of the opinion that 22 years was enough time for the surviving spouse to have a new will drafted which will leave the devolution of her estate under the existing will null and void even though it is the only will ever executed by the testatrix. Since the testatrix never gave birth to any children and both her parents predeceased her, intestate succession will result in the estate devolving upon 25 heirs who are 3 surviving siblings plus the children of 5 siblings who predeceased Mrs. B.

The executor nominated in the will no longer practices as an attorney and Sentinel Trust was approached to act as agent in the deceased estate of Mrs. B. The Master of the High Court was approached by Sentinel Trust arguing that the contents of clause 4 are not enough grounds to have the devolution in terms of the will lapse. It was further argued that the absence of a later will indicates that it was not the intention of the surviving spouse to change her wishes. Clause 4 also does not contain the word “must”, indicating that the surviving spouse is compelled to execute a new will and if she does not, that the devolution would fail. The Master of the High Court accepted the argument and agreed that the Liquidation & Distribution account must be prepared and lie for inspection as per the will. The question is: will there be objections to this Liquidation Account since the nominated heirs are nieces and a nephew? Can the devolution in terms of this Will be successfully contested? This is a case where the executor had to interpret the terms of the will, but the literal wording of the will may not clearly have reflected the intention of the testatrix.

In conclusion it is important that your will be drafted by a suitably qualified professional to avoid any questionable clauses which can result in your objectives not being met.