Does your Will provide the happily ever after you are hoping for?

Sharon Hamman

Sharon Hamman, Momentum Senior Legal Adviser, unpacks what really happens behind the scenes when executing aa Will and shows how the lack of conscious, deliberate estate planning can leave a family in turmoil, leaving a legacy of chaos rather than one of peace and calm.

Here’s a scene that plays out way too often. A tragic loss strikes, bringing scattered family members together to mourn. Death is always difficult, we cry, share stories, ask questions, and ultimately process our grief as best we can. However, it is inevitable, somewhere in between the tears and memories, the conversation steers to ‘what now’? or more specifically, ‘who gets what’? Money expectations have a nasty way of bringing an abrupt end to sorrow, heartache and grief, turning it into greed, disdain and discontent. 

Although it is impossible to change human nature, it is possible to leave a legacy of good order by taking the time to do proper planning, taking care when drafting a Will, giving clear and concise instructions, and preparing the family for what will happen.  A purposefully drafted Will can serve as a roadmap to assist the family and navigate them through a very difficult time.

Statistics from the Master of the High Court in South Africa reveal that less than 15% of South Africans have a valid and executable Will when they die. Momentum Trust says that up to 75% of deceased estates have a liquidity shortfall – there is not enough cash in the estate to successfully administer the estate. This highlights the crucial role of estate planning when drafting a Will – it is the difference between having an executable Will resulting in successful succession.

Many people don’t know that a Will is more than just an expression of wishes. It is a legal document that appoints an executor who will ultimately be tasked with giving effect to the wishes. The Master of the High Court must approve the nominated executor. The executor must execute the Will and estate in terms of the Estate Administration Act – it provides all the steps that must be taken to conclude the administration process. This includes, but is not limited to, identification of the assets and liabilities, valuing those assets, identifying, tracing and tracking heirs and beneficiaries. 

The executor is tasked with settling the debts, income tax, capital gains tax (CGT) and estate duty that may be due and payable, paying all the fees related to the transfer of assets, while being entitled to levying their own fee for work done. To settle all the expenses, the executor will need cash and if there is no cash in the estate, they have two options. Either liquidate assets or ask the heirs to fund the expenses to keep the assets intact.  By making sufficient provision for all the related expenses, the executor’s task is simpler, ensuring transfer of assets can be done in an orderly and timely manner.

When the Will is read and there is a dispute regarding its content and instructions, one of the first questions that will be asked is whether the Will was valid and the testator sound of mind or unduly influenced. This is quite common when faced with Wills that have not been updated in many years, not keeping track of changes in family structures, or on the flipside, amended in secrecy or abruptly. This often provides sufficient grounds for long and costly family disputes.   

A recent example was the estate of Richard Foxton, involving former Public Protector Thuli Madonsela. His Will and estate became the subject of a legal dispute after reports of an updated Will changed the distribution of assets. What was supposed to be a private matter quickly spiralled into a court battle between loved ones.

In my experience, these situations are never just about money but also about grief, expectations, and facing the reality that the person who can clear up any confusion is no longer there. And while most family disputes will not play out in the public eye, it does not detract from the emotional distress it will cause those involved.

Another well-known international example involved Aretha Franklin. When she died in 2018, it was initially believed she had no Will. Later, two handwritten documents were discovered in her home, one found under a couch cushion. Her sons spent five years in court disputing which document reflected her true wishes before a jury eventually ruled that the latter was valid.

In many cases, conflict has its origin in uncertainty. One family member believes the Will means one thing. Another interprets it differently. Add grief, long-standing family dynamics, and the stress of loss, and disagreements escalate quickly.

This is especially true in modern families, where circumstances can be complex. Life partners, children from previous relationships, and changing financial situations can all shape how an estate is distributed. At its core estate planning is not really about paperwork but about family, respect, love, and legacy.

A valid and executable Will that considers all the angles can prevent most misunderstandings and spare families unnecessary conflict. If a valid, executable Will is in place, dotting all the i’s and crossing all the t’s to result in a smooth process, loved ones can shine a happy light on the person they lost rather than trying to figure out what they thought the person’s last wishes were.

A Will is one of the last acts of care someone can leave behind. If it is clear, carefully drafted and continually updated according to life changes it is not just legal, it is love. Let your Will become a roadmap that guides the people you love through grief and puts them on a journey to success.