Freedom of testation is one of the founding principles of the South African law of succession. Testators are free to direct how their estate should devolve and can dispose of their assets as they deem fit. Drafting a last will and testament requires careful consideration of who will be the estate heirs and how the assets will be distributed.
Often, estates consist predominantly of immovable property, such as the house the testator resides in. Testators are quite fond of the idea of turning their houses into a “family home”. This means making all of their children and/or grandchildren beneficiaries of the house. The aim is to be fair and to strengthen family ties. The hope is that this will ensure that the whole family is taken care of. This decision is made with the utmost compassion in mind.
Although done with a noble aim in mind, this can cause conflict upon the death of the testator. Contrary to the beliefs and hopes of the testator that their family will act civilly and resolve any conflict arising out of the distribution of the assets efficiently and with dignity, situations like this have the potential to cause a permanent rift in the family.
Beneficiaries may potentially behave irrationally after the death of the testator or simply disagree on how to make use of an asset, especially where there are multiple beneficiaries. An example would be if the house were to be divided between three adult children and two of them might agree to sell the asset, while the third child might want to continue owning the asset. This can cause conflict within the family that can take years to resolve.
In addition, you have to consider the costs. There are always costs involved when property is being transferred. Transferring the property to multiple beneficiaries Is complicated and greatly increases costs and rarely achieves the intention in mind.
Having a detailed discussion about intentions can allow the testator to plan accordingly. And allow consideration for alternative options like forming a trust.
It is advised that a professional be consulted before making a final decision.
Planning for your death will never be simple, however, the process can be slightly less convoluted if these considerations are made before drafting your last will and testament. It is ill-advised to draft a will without seeking legal counsel.
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6 March 2023