The question is often asked: can I prepare my own Will? The short answer to that is, yes; the correct answer is, no. Although you can, you should not do so.
Why the contradiction?
It is so that anyone who is able to read and write, would be able to record their testamentary wishes in some written or typed from. However, as we will illustrate in future alerts, writing a Will is not a simple statement of what you want to happen to your possessions on your death.
Drafting a Will is a specialised function, given that it is a legal document and the contents must be interpreted with reference to a long and complex body of law.
As a very basic requirement, anyone attempting to draft a Will should have a working knowledge of relevant legislation, which includes the:
- Intestate Succession Act 81 of 1987
- Wills Act 7 of 1953
- Administration of Deceased Estate Act 65 of 1966
- Trust Property Control Act 57 of 1988
- Matrimonial Property Act 88 of 1984
- Civil Union Act 17 of 2006
- Maintenance of Surviving Spouse Act 27 of 1990
- Estate Duty Act 45 of 1955
- Pension Fund Act 24 of 1956
- Long Term Insurance Act 52 of 1998
- Income Tax Act 58 of 1962, with specific reference to donations tax, capital gains tax and transfer duty.
This legislation must be understood in the context of the common law dealing with succession and the many cases interpreting and developing the law.
In principle, nothing prevents anybody over the age of 16 from preparing their own Will. However, only attorneys (lawyers), law firms and trust companies are permitted to charge for preparing a Will on someone's behalf.
Broadly speaking, these options are open to you for drafting your Will
- You could write out your own Will, whether you write it out in long hand or by word processor, expressing yourself in your own words.
- You could prepare your own Will on the basis of a document professionally drafted previously for yourself or for someone else and applying a 'cut and paste' process.
- You could purchase a standard, pre-printed document and fill in the relevant blank spaces.
- You could interface with a website platform where a Will is generated for you according to your responses to various questions posed.
- You could follow one of the proliferation of self-help guides to be found online.
- Or, you could consult a professional who specialises in this field and who will take your instructions and prepare a document - your Will - for your final approval.
When considering your options, you need to bear in mind that the document must be drafted in a way that conveys your intentions clearly and precisely, without any form of legal ambiguity. You also need to ensure that your intentions are lawful and viable, and that you understand the full legal consequences of those intentions.
The most common reasons why people do not consult a professional to prepare their Wills are that either they believe their estate is too small or too simple to warrant the need for professional advice, or they are simply averse to paying for the service.
Like an outdated Will, a Will that does not translate into the viable realisation of the testator's intentions often leads to delays, legal disputes and costs, and ultimately, the frustration or total failure of the testators' wishes. The situation is made worse when potential beneficiaries are left stranded and disappointed. In such cases, the beneficiaries would have been better served if there was no Will at all.
From this, it clearly is best to consult a professional and preferably one that has in depth knowledge of the law dealing directly and indirectly with Wills and substantial experience in administering estates.
In future alerts, we will discuss the content of Wills both with regard to the aspects and assets that can be included and dealt with in a Will and those that cannot, given general legal principles. Many misconceptions prevail, which are more common in Wills drafted by non-professionals.