Get your free will to avoid grave consequences

During National Wills Week, participating attorneys will draw up a will for you free of charge. You can find a list of participating law firms at LSSA National Wills Week.

Sanlam research shows that only 46% of women have wills — nearly 20% less than men (63%). This is a cause for concern because, as per Statista, 42% of South African households were headed by women in 2021, with this statistic rising to more than 50% in the Eastern Cape and just over 48% in KwaZulu-Natal.

Moremadi Mabule, head of wills operations at Sanlam Trust, says it is concerning that so many women are not exercising their right to choose who inherits from their estate — known as freedom of testation.

The reality is that regardless of gender, nearly half (45%) of people who don’t have a will, believe they don’t own enough assets to warrant estate planning.

Mabule says this misconception can have serious consequences. Your will basically stipulates how your assets will be distributed after your death, and while most people tend to think of a car or property, your assets also include jewellery, investments and sentimental items — even digital assets such as photos in the cloud and cryptocurrency.

“For parents, your will should also provide for guardianship of your children and a plan to care for your pets. Estate planning gives you peace of mind, knowing that your intended beneficiaries will inherit and avoid unnecessary turmoil during an already difficult time for your loved ones.”

The importance of updating your will

One Sanlam client’s family discovered just how important it is to update a will after a major life event. In 2009, the mother signed a will that left 40% to each of her children and 20% to her boyfriend at the time. In 2018, she married her boyfriend in community of property (COP) but did not update her will. When she died, her husband was automatically entitled to 50% of their joint estate while her children could only inherit from her remaining 50% of the estate, meaning they only inherited 25% each and not 40% each as she originally intended.

Factors to consider when drafting your will

As per the example, the legal status of your marriage has major implications on how your estate is dissolved.

If you choose to get married in COP, you create what is called a joint estate. This means that the instructions you set out in your will, will only apply to your half of the joint estate and the remaining 50% will belong to your surviving spouse.

Mabule says other things to keep in mind include:

• Make sure your instructions can be executed practically. For example, you cannot leave your share of a car to someone.


• If you have a business, your will is a vital part of business succession planning and can help avert potential disasters, such as leaving the running of a business to minors and/or unqualified persons.


• Estate planning is critical for parents of children with serious disabilities, as they may never be able to work and provide for themselves.

Sanlam Trust found that over 46% of deceased estates it administers have insufficient cash to cover all debts, taxes and estate duties. This includes the cost to transfer a property to an heir. Insufficient liquidity can erode the inheritance of those left behind, as a cash shortfall often means that assets of the estate must be sold to increase liquidity. A financial adviser can help you calculate estate costs so that you can prepare accordingly, for example, with a dedicated life insurance policy to ensure sufficient cash flow.

Johan Strydom, growth head at FNB Fiduciary, adds that any asset left to a surviving spouse will be deductible from estate duty in the estate of the deceased. This means that there will be no estate duty payable if everything is left to your surviving spouse. However, this could mean that estate duty is postponed to the death of the surviving spouse.

“Keep in mind that all estates qualify for a R3.5-million abatement before paying estate duty, meaning that there is no estate duty on the first R3.5-million in your estate.

“If your surviving spouse inherits everything, their estate when they die would qualify for a R3.5-million abatement as well as the ‘unused’ R3.5-million abatement of your estate that has rolled over; therefore there would be a total amount of R7-million on which estate duty is not payable,” Strydom says.

Drafting your will

When it comes down to the nitty-gritty of drafting your will, the words and language you choose can be crucial.

Terence Tobin, a financial planner at Rich Ideas, says, for example, simply saying, “I bequeath all my money to my daughter, Penny” can be construed as too vague.

“You need to be more specific. Does all your money refer to physical money such as the notes and coins in your wallet or does it include your fixed deposit at the bank?” he says.

Another example of potential confusion could be where you have entered a new relationship and now have step-children, but your will still says: “I bequeath my estate to my children.” DM