Preying on the dead!

Someone I know phones me, “Hey, I need your advice”. We setup an appointment and the person emailed me a document of about 6 pages. By the time we met I’ve had a chance to go through the document and made some notes.

Although I could anticipate his issue, I like to hear it from the other person’s perspective and one of the first questions I asked, “OK, so what is bothering you about the document?”. This almost always triggers clients and they fire away. It was no different in this case and the person pulls out a list of issues with the will and testament that was emailed to me.

The testator in this case was assisted by a financial advisor to draft a will. The advisor used standard will template and unfortunately this created a heap of issues. Not only in the manner the estate had to be devolved, but the advisor also embedded himself in the will for maximum financial gain. Herein the advisor had sole control over the biggest asset and in selling the asset would gain a substantial amount. The advisor therefore tried to influence the beneficiaries to agree to sell the specific asset.  It goes further to the point where this advisor tried to portrait himself as a legal practitioner and that it is also obligatory that he must assist with the execution of the will. It didn’t end there, because it was later discovered that this advisor was sequestrated a few years back and it was not clear whether the courts declared him fit and proper. This is just some of the bigger issues encountered in this case, but it goes further into the validity of the will itself, and so forth.

This is really an issue we face quite often after a person passed away and it is not the first case I encountered of this nature. We’ve had a situation where someone had a will draw up by a reputable bank and several months later there were still issues pertaining to the will. Upon scrutiny we found that the bank used a standardised template and the bequests were not carefully thought through and discussed with the testator.

From the cases dealt with and those reviewed, I found that the majority with issues were drafted on templates by someone not qualified in the legal field. At first glance one might think these templates were the issue, but surprisingly they were not. The issues were rooted in the fact that the information surrounding what is contained in the templates were neglected. The drafters of these wills focused on what is written within the template and filling in the blanks. There were no in-depth discussions held in order to determine the true intentions of the testator. Sadly, I must also state that I have dealt with cases where legal practitioners were guilty of doing exactly the same thing.

Let me demonstrate through another case I encountered a few years back. A father’s will direct that his house be given to daughter A and that a second smaller dwelling, on the same erf, be given to daughter B. This was a huge corner erf and the dwellings had separate entrances from two different roads. Sister B had no interest in living in the smaller dwelling given that she had her own house. She therefore rented out the dwelling for about two years and there were no real issues. Her husband lost his job and they decided to convert the smaller dwelling into a shop/café. Sister A was not too happy about this conversion and stated numerous reasons for her unhappiness. One of the reasons was the higher use of electricity. Unfortunately, the main dwelling had the distribution point for the electricity on the entire erf. The two sisters were constantly fighting and a lot of accusations were thrown around. Sister A would switch off the electricity supply to the shop/café and then leave town for the weekend. This resulted in fridges being off and the shop/café cold stock being damaged, which in turn resulted losses. Before the father passed away this was a very close knit family who had weekly family events, went on vacations together and who confided in one another. Although the will was successfully devolved by the Executor, the issues it created damaged the family bonds. Years later and these issues were still not resolved and this was clearly not the father’s true intentions for his children.

Upon scrutiny and having in-depth interviews I found that the will was in actual fact drawn up by an attorney. Someone always accompanied the father to all the appointments with the attorney. It became clear that the attorney was only interested in compiling a list of assets and then attaching names to those assets. The latter being the easy way to do it, but years later still causing endless grief for the family. You are a legal practitioner! A professional! It is your job to scrutinise the estate and sketch different scenarios to the testator. It is your job to ask the right questions and determine the true intention of the testator for each and every asset within the estate. Don’t rush the drafting of a will just for the sake of having or providing it. I submit that a full risk analysis should be performed against the estate and that such an analysis be explained to the testator.

In another case a non-legal person drafted a will for a testator. The appointed Executor discovered an interpretive issue in a clause and approached the court for assistance. The Executor was advised by a court official to have the entire will declared void. I was flabbergasted at this advice, given that there were alternatives that would give effect to the wishes of the testator.

Anyone can draft a will and testament, but from my experience, I strongly advise against it. I also strongly advise against using banks, financial advisors, funeral parlours, or any other institutions to draft your will. You don’t ask you bank to service your vehicle, or go to your mechanic if you feel sick. Legal practitioners are specifically trained in succession laws which covers wills and testaments. So when it comes to the drafting of your will and testament rather approach a legal practitioner to make sure your exact wishes are legally and correctly captured.

A will and testament is one of the most important documents you should and will have. It is the last chance a person has to give effect to their wishes. Don’t waste this opportunity. Having a will and testament does not necessarily mean your wishes and true intentions will be executed. It is therefore important that you as the testator and the person who drafts the will have a clear understanding of what the intentions are.

There’s always vultures circling, awaiting people to pass on, and then sweeping in to prey on the dead.

Most legal practitioners will be able to assist you and we encourage you to reach out to them. At NLHA Legal Consulting we have specialist to assist you in the drafting of your will and testament. Even if you have an existing will at another institution, we can assist you in ensuring that the will is according to your exact wishes and that all risks are mitigated.  

Contact us for a free consultation if you have any questions relating to wills and testaments by using our Contact Form.