Wills

We regularly provide assistance in the drawing up of wills. This may for example be prompted by a need to protect a surviving cohabitee or a wish to transfer a family business to the next generation in a commercial yet fair way.

In our opinion far too many rely on the statutory rules of succession law, expecting these to govern everything in the best way when they die. Although this was the ambition of the legislator, many of us find that we are not in the 'standard' family situation that the legislation primarily envisaged. Even if we are, we may still have assets that we wish to distribute in a personal way among those who are close to us and who we care about.

Many also seem to be under the impression that a will is a simple, standardised document that can be prepared using a standard form as which only a few personal details need to be entered. We do not agree. It is equally inappropriate as to rely on the statutory rules sharing out the inheritance in the way in which we would like to see it distributed. In our opinion, in order for a will to provide the desired result, the drawing up of the will must normally be preceded by a thorough review of the testator's full financial situation and the fundamental aims that the testator seeks to achieve with the will. Consequently, a will should be drawn up and formulated by a lawyer with experience in inheritance law, who is best able to appreciate the overall issue and the implications of the various courses of action as well as the legal implications of different wordings.

There are situations where the circumstances are such that a will can be very brief, with almost standard wording. However, in a will where there are opposing interests on the part of several successors the wording and content will become extremely important. We often see in the course of our work the ensuing costly consequences of poorly prepared and worded wills emerging as disputes regarding interpretation and ineffective provisions. In addition to this, the statutory rules and formal requirements for wills are strictly applied and even a minor deviation from these rules may have disastrous consequences, for instance total invalidity of the will.

Another misconception is that a will, once it has been drawn up, can be put in a safe place and then forgotten about by the testator. This is not the case. A will is often a perishable product and its shelf life depends on its content. It is therefore important to review the content of the will when the family profile or financial situation changes in any essential respect.