Protecting your heirs

When it comes to important ‘personal’ documents, such as wills and antenuptial contracts, be sure you agree with all the clauses before signing.

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Antenuptial contracts and wills are among the most important documents any person will ever execute – that is, sign and thereby make legally valid. But I so often come across such documents that clearly do not accurately reflect the intentions of the parties who commissioned them. Part of the problem is that drafters of legal documents may use clauses unfamiliar to their clients.

They don’t do so intentionally – I think they forget most of their clients don’t use legal terminology on a daily basis. Whichever the case, it means that often, trusting in the abilities of the drafter, a client will sign a document without grasping all the words and their possible implications.

Wills are the worst documents when it comes to misunderstandings, because the client has usually passed away before other interested parties, such as heirs, legatees or spouses, become aware the document doesn’t convey the true wishes of the testator or testatrix. All too often the deserving heirs then have to share their inheritance with others or, worse, forego what would have been their birthright.

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Going to court
A will can be ‘rectified’ after death, but this isn’t easy. In terms of the common law, the High Court can correct a will, either by elimination of impossible, illegal and immoral dispositions, or by rectification of a mistake, where the testator’s intentions aren’t correctly represented. In the second instance, the applicants who could possibly be the heirs the testator wanted to benefit by the will are likely to face considerable opposition from:

  • Those who the allegedly mis-drafted will benefits.
  • The intestate heirs where the will hasn’t catered for all the assets, or has been drafted in such a manner that an eventuality wasn’t catered for, leaving the assets un-bequeathed.

The court will require proof that the discrepancy between the alleged wishes of the deceased and the expression of the will was due to a mistake. Then the applicant will have to satisfy the court that the wishes of the deceased were in fact what the applicant alleges.

The onus of proof therefore rests on the applicant. And those who wish to rectify a will in the face of stern opposition face huge costs. Courts do not lightly rectify a will. The very act of execution of a will is fairly solid ‘face value’ proof that the testator knew and understood the contents thereof. It’s better to avoid such acrimony, and I urge testators to read their wills carefully and ensure that they are in agreement with all the clauses.

Peter O’Halloran is head of tax at BDO, Gaborone. Contact him on 00267 390 2779 or at [email protected]. Please state ‘Tax’ in the subject line of your email.