The High Stakes Risks in Modern Estate Planning

As South Africa marks Wills Week this September, Standard Bank Wealth & Investment is urging consumers to ensure their Wills are valid and up to date, and that any amendments comply with the law.

On the 1 August   in the matter of Mokgoro NO and Others v The Master and Others, the  Kimberley High Court,   found that a document  that had been signed and witnessed electronically to be the last Will and testament  of the deceased and should be accepted by the Master of the High Court as such, despite not meeting the  formal requirements set out in  the Wills Act of 1953.

“While the judgment may feel like progress in recognising digital documentation, this case highlights the importance of executing your Will in line with legislation to avoid delays in administration and potentially costly litigation,” says Nokuzola Cossie, Head of Fiduciary at Standard Bank Wealth & Investment.

Cossie cautions clients against viewing this case as a blanket approval of electronic Wills. “The ruling wasn’t about allowing electronic Wills broadly. It was about ensuring that the deceased’s intentions were given effect to despite non-compliance with the Wills Act.”  she explains.

The ability to honour your wishes, in a timely manner depends on whether your Will is executable.

The risks of invalid or unsigned Wills

Cossie warns that improperly executed or unsigned Wills can:

• cause significant delays in winding up an estate, which may leave dependents without access to funds timeously;
• “revive” an outdated Will that no longer reflects your intentions;
• result in no Will being accepted and the estate being declared intestate; or
• saddle the estate with legal costs that diminish the legacy you leave behind;

It must be noted that the risk extends beyond non-compliance with the Wills Act in the execution of your Will.

“A poorly drafted Will that fails to give clear instructions or isn’t practical in execution can be just as problematic,” says Cossie.

For example, leaving immovable property to heirs without sufficient liquidity to cover estate expenses, such as property transfer costs, Master’s fees, estate duty, and capital gains tax could lead to forced sale of estate assets. This may result in the bequest failing, sparking family conflict that could escalate into unforeseen litigation or leave an heir destitute.

Wills Week: A practical checkpoint

Standard Bank Wealth & Investment encourages families to use Wills Week as an opportunity to review their estate plans. Start by:

1. Confirming you have a valid Will on record.
2. Ensuring it has been executed correctly.
3. Following up on any drafts that have not been finalised.
4. Knowing exactly where the original Will is stored.
5. Confirming who your nominated executor is.
6. Reviewing when your Will was last updated.

In today’s rapidly evolving world, this simple checklist can help prevent costly disputes and ensure your intentions are honoured without unnecessary legal battles.