Drafting a will can bring out the best in people, because it gives them the chance to share what they will eventually no longer need. It can also bring out the worst in those who want to manipulate the behavior of their heirs, such as for example the man whose will read: “To my wife. I bequeath the sum of R50 000 on condition that she shall not use the telephone or her cellphone for a period of 25 days after my death.” Are there any toothless conditions in your will?
Most of us want our possessions to be distributed very specifically when we die – the family home to one child, the holiday home to the other, the curtains to one child, the furniture along with Grandma’s favorite crockery to the eldest unmarried daughter – and on it goes. Having our wishes carried out after death and controlling the allocation of our assets is the reason we have Wills drawn up in the first place. The example stated above about the phone-addicted wife, is another example of an essentially toothless condition.
People are often inclined to have very definite ideas as to what should happen to their hard-earned estate after they have passed away, and their Will would therefore be constructed in very precise terms dealing with each of the assets and spelling out exactly how and when they are to be disposed of or retained for future generations.
Irrespective of the motivation you might have for the conditions in your will, there are plenty of pitfalls when drafting a will – such as what is said, how it is said and whether the formalities of executing the will are complied with.
An effective condition has two attributes. It must be enforceable, which means that someone must be able to determine whether or not the behavior change has taken place. And it must have a sanction if the behavior change does not happen. A sanction would be that the money or assets left to the heir are specifically withheld or directed elsewhere.
It would be exceedingly difficult to enforce toothless conditions where no provision is made with regards to a sanction, in the will, if the beneficiary disregards the condition. Although the conditions do not invalidate the will, and the heirs will most likely still inherit even if they do not adhere to the conditions.
Sometimes, out of worry of the money being squandered or of creating laziness, parents can be hesitant to let their children have access to capital too early in life and so they set out very specific instructions in their Will – down to the education and career path that their heirs must follow – complete with where and what they are to study and at what stages of life the capital can be released to them from trusts.
These instructions might be sound in logic as the parent is only wanting the best for their family, however we cannot predict the future and the ‘rule from the grave’ instructions cannot anticipate how circumstances will change after the death of the testator.
An example of an effective condition could be a parent who leaves money in a trust to a drug-addicted child on condition that he stops taking all drugs for a year. To ensure that it is enforceable the parent could add: the teenager has to undergo drug-testing at regular intervals, with the results sent to the trustees. The sanction would be that if he did not stay drug-free for a year, the money would go instead to another heir or a nominated charity dealing with drug-addicts.
When drafting a will, you need to be incredibly careful about inserting clauses that are against public policy, because a court will ignore such clauses. Courts are very reluctant to uphold clauses that are racist or sexist or discriminate on religious grounds.
If you are unsure on whether or not you have toothless conditions in your will, consult the services of a professional to review or amend your will. Remember, a will should not create any hardship for beneficiaries. Death is a difficult time – you don’t want to add to the burden.