Emotions that could derail your will and estate plan

People often draft a will with the best intentions, and even though the document may be technically sound, emotional decisions can have far-reaching consequences for the beneficiaries. They may even result in potential delays when winding up the estate.

To discuss the feelings or sentiments that could derail your estate planning, I’m joined by the CEO of the Fiduciary Institute of Southern Africa, Louis van Vuren. Louis, I’d like to discuss each of these emotions in some detail, but let’s unpack the issues first. What has been your experience? What are the five emotional issues that may create problems when winding up an estate?

LOUIS VAN VUREN: Ingé, firstly the desire to control – even after your death. Then also the desire to keep the peace – specifically in difficult family circumstances. Then there is also sympathy with struggling children, trying to look after your struggling children after your death, sometimes at the expense of other considerations. Feelings of guilt, or what I sometimes call debts of honour, when people feel they want to set the record straight or set things right in the will that they haven’t got round to during their lifetime. And then lastly feelings of superiority, whether it’s moral superiority or racial superiority or whatever. That also sometimes comes between a good, practical legally enforceable will and the wishes of the testator.

INGÉ LAMPRECHT: Louis, like you mentioned just now, impractical provisions in a will are often due to a desire to control or rule from the grave, so to speak. Why is this problematic and how do you avoid it?

LOUIS VAN VUREN: Ingé, the reality is that it doesn’t matter how carefully you think about things prior to your death, after your death circumstances can change drastically. And then if your will and the provisions of your will and how you would like things to happen after your death – sometimes for many years to come in certain cases – do not take into consideration the fact that circumstances can change drastically, this can lead to impractical situations, impractical solutions, etc.

One example would be: it has been, especially in the farming community, for many years customary to leave the farm and the farming operations to, let’s say, a son with the usufruct in favour of the surviving spouse, usually the wife. And the usufruct – in itself there is nothing wrong with it and it’s a perfectly legal structure – but the practical side of this is that often the farmers also try to limit the usufruct by stipulating that it will exist until the death or remarriage of the surviving spouse. And when people started living together and not necessarily getting married, there were all kinds of hilarious ways of trying to avoid a situation where the surviving spouse would still enjoy the usufruct after living with somebody.

An example that I came across many years ago was where the will stipulated that if the surviving spouse, the wife, stayed with any man under the roof of that farmhouse for more than five nights, the usufruct would be cancelled and everything would then go to the son. Now obviously the surviving spouse then found a very creative way around that. She married a year-long friend of theirs and they stayed in the house on the farm from Monday to Saturday morning, then went to town for the weekend and came back on the next Monday morning.

INGÉ LAMPRECHT: Very clever!

LOUIS VAN VUREN: Not breaking the conditions of the will. That’s just a hilarious example of where trying to rule from the grave didn’t work.

Then the other thing: there are conditions without sanction or an alternative bequest if the condition is not met. Now, that means nothing if you do not attach a sanction to a conditional bequest. An example of a conditional bequest would be: “I bequeath R1 million to my son, but he can only get it if he runs the Comrades Marathon in under six hours.” If you don’t set an alternative in the will, that means nothing because the condition is then unenforceable.

INGÉ LAMPRECHT: Louis, a lot of South African families are so-called “reconstituted” families. If this is your second or third marriage, there may be competing interests at play and a desire to keep the peace. What do you see in practice?

LOUIS VAN VUREN: Ingé, a reconstituted family can be a very simple situation, but it can also be a very complex situation. You can just think of all the different permutations with regard to children. In these families you get my children, your children, our children – and those are all competing interests. The current spouse may not be the natural parent of any of the children. Then you have the competing interests in the estate plan and, in crafting a practical and legally binding will, the challenge of addressing competing interests of looking after the surviving spouse, but at the same time protecting the interests of the children.

There is a slightly obscure provision in the Wills Act of 1953, which basically provides that if you bequeath something to the surviving spouse and a descendant or descendants – your children, for example – and let’s say one of the children renounces that inheritance, then that portion that would have gone to the child who renounced the inheritance will go to the surviving spouse. There is no way you can avoid it. You cannot write that legislative provision out of your will. It overrules any provision in your will. So that is not necessarily a problem if the children are all the children of the surviving spouse, the natural children of the surviving spouse.

But if the surviving spouse is not that natural parent of any of the children, that could become a problem. The conflict has to be managed – that conflict and those competing interests have to be managed in crafting the estate plan and drafting the will, making sure that you balance the interests of the surviving spouse and the children in a situation like that. If you don’t manage it at the planning and drafting stage, it will become messy after your death.

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