Online will-drafting works well when there are no divorces or children from previous marriages
Creating a will online is better than having no will, which is one of the most important documents that you will ever draft
Using an online will service to draw up a will is quick, easy and inexpensive, but is not a substitute for consulting an attorney or financial planner who can ensure your will is properly drafted and executed.
It is possible to write down what you wish to leave to whom after your death on the back of a serviette, but the devil is in the detail and little technicalities such as too much space between the end of the will and your signature can render a will invalid.
Home-made wills are those that most often end up in court, which takes time and money, says James Faber, a lecturer in private law at the University of the Free State. But as for making use of online will services to draft your will, experts say although this is not first prize, it has a place.
Faber says drafting a will online is better than having no will, which is one of the most important documents that you will ever draft.
However, good legal advice on the drafting and proper execution of your stated wishes is advisable to ensure it is valid.
Gareth Myers, an attorney who set up an online will service at iLawyer.co.za, says an online will is fine for 90% of people. But he admits that nothing will replace having a lawyer if you want a more complicated or bespoke will.
Ensuring your will is valid
Faber says a distinction needs to be made between drafting a will and its execution. When drafting a will, it can be handwritten or typed, but to comply with the law, it must be signed by hand and not electronically because the Electronic Communications and Transactions Act does not apply to wills.
It is good practice to leave a copy of your will with trusted friends, an attorney or colleagues, but on that copy leave instructions on where to locate the original, which the master of the high court needs for the estate administration process, Faber says.
Properly executing a will involves adhering to the Wills Act when it comes to signing and witnessing. There are four things to keep in mind: who should sign, where the signatures must be placed, how it must be signed and who must be present with the signing.
Myers says iLawyer’s online will is very customisable and has the options most people want. For most people the section on residuary estate detailing the total estate and how it is to be divided between a spouse and children is sufficient.
If you want to make specific bequests, such as leaving your car to your son or your jewellery to your daughter, the online will can accommodate that too. And it explains that in making specific bequests, you will reduce the residue of your estate to be divided between your heirs.
The website also explains how to ensure that the will is valid by signing and witnessing it properly.
The clearer and simpler a will is, the better; when wills are not clear it leads to disputes among heirs, Myers says.
iLawyer prompts you to think about overlooked issues such as excluding any inheritance from your children’s marital property regime. Advanced estate planning entailing usufructs and trusts for minor children are also catered for iLawyer.
However, trusts can be complicated and iLawyer covers only a basic trust setup and gives the executors a lot of power so it should only be used with an executor you trust.
With an online will the responsibility to get the will properly signed and witnessed, to ensure it is valid and enforceable, falls on you.
"The cost difference between an online will and a tailor-made one is massive because lawyers charge by the hour and a tailor-made will can easily cost R4,000-R6,000 and take three to four hours," Myers says.
iLawyer charges R399.
Sanlam Trust also offers a simple, free online will, which includes reminders to have life assurance to ensure there is enough cash in the estate to cover expenses that arise upon death. The user answers questions online and then Sanlam Trust e-mails the will with instructions to review, print and sign it.
David Thomson, senior legal adviser at Sanlam Trust, says the online will is suitable for simple situations where there are no divorces or children from previous marriages. Complex family situations require specially crafted wills to ensure, for example, that one does not inadvertently leave out children from a former marriage.
Thomson says since 60%-70% of South Africans do not have a will and are reluctant to engage an attorney or financial planner, an online will does serve a purpose.
You can nominate an executor and specify who your heirs should be, he says.
Sanlam Trust’s online will does not allow for more advanced arrangements, such as trusts for minor children or usufructuary rights (rights to use an asset without full ownership).
Trusts can be complicated and most people don’t understand the respective obligations of the usufructuary and the bare dominium owners (the owner of the asset subject to a usufruct). It is better to get advice in this regard, he says.
If you nominate Sanlam Trust as the executor of your estate, the trust company will keep your will in its vault for an annual cost of R57.50 (including VAT) or free if you are older than 65. In addition, you automatically qualify for a 5% rebate on executor’s fees, quality and control checks, free amendments and a free living will (which sets out your wishes regarding your medical care when you are too ill to communicate them).
Most trust companies charge the maximum allowable executor’s fees of 3.99% of the estate. Executors fees are negotiable. If you do not appoint Sanlam Trust as your executor you will be charged a fee of R958.34.
If you opt for this route, Thomson advises you to store your will securely and to let the executor know where it can be located.
Follow these tips when you draft your will
If your will is not executed in line with the Wills Act, the Master of the High Court will not accept it and you run the risk that your estate will be divided according to the Law on Intestate Succession.
To ensure that your will is correctly signed and witnessed, follow these simple but important steps:
- All signatures must be done on the original will document.
- You (the testator or testatrix) must sign the will after the last written instructions on the last page and anywhere on all the other pages. Initials are also regarded as a signature.
- Sign just below or close to the last line of the will. A large gap between the last line of the will and your signature could invalidate your will.
- Sign your will in the presence of two witnesses (present at the same time). Witnesses must be 14 years or older and competent (have the mental capacity) to give evidence in a court of law.
- Witnesses must sign the will in your presence and in the presence of each other on the last page of the document after your signature. It is also recommended that they sign in full on every page.
- Witnesses may not be any of the heirs of your estate, or their spouses. If they do sign as witnesses, they may be disqualified from inheriting. If an heir signs as a witness, their portion of the inheritance may be ignored and but the other heirs of the residue of your estate will get their share of the inheritance. It is possible to ask the court to declare the witness competent to inherit but this takes time and money.
- It is not advisable for an executor to sign as a witness because professional executors earn a fee and there may be questions of a conflict of interest.
- Date your will in case more than one will is found after your death. This way it will be clear what your last wishes were.
During National Wills Week, attorneys around the country offer to draw up wills for free. The week runs from September 17-21.