Reviewing your will on a regular basis is SO important in order to avoid unintended consequences.
Godwin Magosha gives us an example of unintended consequence which demonstrates why wills should regularly be reviewed to cater for changing circumstances.
While it is important to have a Will that meets the legal requirements, it is equally important to review your Will regularly to avoid unintended consequences.
In October 2016, the High Court Western Cape delivered a decision in a case whose facts make for an excellent lesson on why one should review his Will regularly.
In short, the case involved a husband and wife who had divorced. The husband passed away within 3 months from the date of divorce. The parties had drafted a Joint Will. The relevant clause of their Will provided that the estate of the first spouse to die will go to the survivor. The husband had not changed his Will at the time of his death. The surviving spouse, who is now a divorcee, approached the court to ensure that she received estate of the deceased ex-husband. The court found against her.
The court’s finding was based on the law that if a person dies within 3 months from the date of divorce and the person had executed a Will before his death; his Will shall be implemented as if his ex-wife had died before him – unless if it is clear, from the will, that he still wants his ex-wife to inherit.
Therefore, if it was not for the law and the fact that he died within 3 months from date of divorce, the ex-wife could have inherited his entire estate. I presume that it will not be intention of many people to leave their entire estates to the ex-spouse. However, it will not be surprising if many divorced couples have not paid any attention to the need to update their Wills. This is simply courting trouble.
Imagine a divorcee who gets remarried and has children. The couple does not to put a Will in place. If the divorcee had a Will, in which she leaves all her earthly goods to her ex-spouse, the ex-spouse will inherit according to such Will, notwithstanding that they are divorced. Can you imagine the devastating impact this will have on her children and spouse? The recourse that the children and the surviving spouse may have will be to lodge a claim for maintenance against the deceased estate. This is likely to be contested in court, which further diverts resources from the survivors.
The case above is just one example, of potential unintended consequences failure to review a will regularly. The following are examples of life events that you can use as a guide to update your will: a birth of your child, sale or purchase of a property, getting married, passing away of a loved one (spouse or dependant), getting divorced, starting or selling a business etc.
In your conversation with your financial or legal adviser, do not forget to disclose if you have made a Will sometime ago, even if you no longer remember where it is. The quality of advice you receive is dependent on the information you provided to your adviser.
Dunster Attorneys Incorporated
T: 021 422 3020
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