Estate Living Digital Publication Issue 11 November 2015 | Page 44

and that of your spouse – notwithstanding how the
assets might be registered and when the assets were
acquired,” explains Knott.
“Your spouse still retains ownership of one half
share of any fixed property you might have
bequeathed to a third party, a child or children,
for example. To complicate matters further, if you
have bequeathed your half share to your minor
children and the property is bonded and there
are insufficient monies to discharge the bond, the
property will probably end up having to be sold, as
very few financial institutions will agree to lend to
minors.”

“If you are married in terms of the accrual regime,
then the calculation to determine which spouse has
a claim against the other to equalise the growth of
the respective estates only occurs at death. Your
spouse may, therefore, have a substantial claim
against your estate necessitating the sale of assets
you had not intended to be realised,” says Knott.
Knott further advises that it is often unwise to
describe the bequest of a fixed property by their
physical address, as one might move house and be
remiss in not updating the will in the meantime. “If
the property described in your will by its address
has been sold, the bequest will lapse. It is, however,
sufficient for the will to refer to your ‘residential
property’, unless, of course, you travel regularly
between houses for the different seasons and then
one should be more descriptive.”
If you have a farm that you escape to during the
weekend, then remember that agricultural land
may not be held in the name of more than one
person in terms of the Subdivision of Agricultural
Land Act. “There has been talk about the repeal of
this Act for many years, but, for now, if you wish
your farm to devolve upon several beneficiaries,
then you must create a company and bequeath
the farm to this entity. A skilled wills draftsman
can assist with this and professional advice is
essential, as there may be protected workers living
on the farm whose needs and rights will have to be
considered.”

INVESTMENT SAVVY

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Remember any property bequeathed in terms of
your will must devolve upon the beneficiary, free
of any mortgage bond, and one should ensure
that there is either bond liability insurance cover
or assets held in your estate that may be easily
realised to discharge this liability.

Knott concludes that there are many facets that need
to be considered when drafting a will and advises that
one should not attempt this without the guidance
and assistance of a professional.
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