May even result in delays when winding up the estate

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.

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