Wills week is upon us and today I would like to take some time to tell you a bit more about the dangers of dying without a valid will in South Africa. The Oxford dictionary defines a will as… Sound exciting? No? I kind of expected as much.

With the baton blatantly having been passed by the Information Age to the Age of Intelligence, I respectfully submit that we might, by now and as a species, have this topic covered. This is unequivocally not to say that much need not still be done to limit the number of intestate deaths in our country on a practical level, but rather to say that if you Google the topic, you will undoubtedly find a myriad of articles, each one borrowing ever more creatively from the one that preceded it.

To keep the introduction contemporary, and if I’m speaking more truthfully, mainly for wit’s sake, I asked ChatGPT if there still exists a need for another article on the topic. It answered: “If there is already a substantial amount of well-established, accessible content on the topic, adding more articles could contribute to redundancy rather than providing new value”. A scathing instruction from the most intelligent of artificials, to refrain from expanding on the topic any further, wouldn’t you agree?

Essentially then, in this piece I would like to coin the term “Powerful Will”. Who knows, John Milton might have already received posthumous credit for it by the time I’m done writing, but for now I’ll assume that the credit remains unassigned and plough on. I aim to illustrate how a Powerful Will differs from Valid Will and even a Well Drafted Will.  I hope to provide value and avoid redundancy.

A Valid Will is the absolute baseline. The very least we can expect. A shining testament to mediocrity. Wishes are relayed to a drafter and blindly regurgitated onto a prepopulated canvass. The same canvass which unfortunately still hangs neatly framed in the living room of many a South African today, with a copy kept safe in the vault of some undisclosed institution, for a small fee of course. It complies with the Wills Act. That’s it. No consideration, no planning, just valid and as instructed. Revocation, security and the rest in equal shares to my minor children X and Y, with poor old Z (whose name doesn’t yet appear) being one conception away from his/her lack of inheritance being administered by the Guardian Fund. Witnessed and signed correctly. Good enough for the masses.

Venturing into less disdainful territory, we stumble across the Well Drafted Will. The language fairly unambiguous. Assets and liabilities considered. Liquidity assessed. Successive heirs and legatees stipulated. A two-page testamentary trust to provide for the little ones and perhaps another to keep the black sheep of the family in check. A professional executor, with a backup, just in case. A policy sold to cover the duties. This will is sufficient. It will most likely do. The adverse consequences thereof never too severe. I dare say, it might even give effect to your wishes, but at its core it will forever remain merely a well drafted, albeit aimless, cry into a void of isolation. It is only itself. It does not exist in relation to much else. It is, for the most part the opposite of holistic. I admit that it does sometimes prove to be effective, though I suspect luck might have more to do with it than sound fiduciary advice.

In contrast, where a Well Drafted Will is truly treated as the last step in execution of a comprehensive financial-, estate and succession plan, one encounters the Powerful Will. This is not only a document which gives effect to your wishes, but an indispensable tool with which to add the final touches to the plan that secures your legacy.

You can spot it in the wild by the following distinct characteristics:

• Its use of plain language and holistic nature;

• Its seamless communication with other related wills, entities and plans;

• Its interplay with financial products;

• Its codicils being absent;

• Its location being known to family members;

• Its lack of subdivision of agricultural land;

• Its inability to force undesired sales;

• Its jurisdiction specific revocation;

• Its limited use of limited rights;

• Its competent and caring executors, familiar to the family;

• Its failure to attempt to rule from the grave and bind third parties unilaterally;

• Its date always being very close to date you lay eyes on it;

• Its reverence for the difference between legatees and heirs;

• Its integration of class nominations and intentionally general terms to decrease the risk of unintended consequences when circumstances change before the next review;

• Its successive trustee nominations;

• Its differentiation between shares and loan accounts;

• Its fully clothed praeceptums;

• Its clear respect for statutory definitions of words like “spouse”;

• Its comprehension of 37C and marital regimes; and

• Its ultimate executability.

To salvage what brevity may remain, I will include no more characteristics, although though many still exist. I would like to add that my general tone in this piece stems not from distaste, but rather, extreme passion. I care about this topic and I care about people and what happens to them. That is why do what I do and why I cannot suffer a Valid Will but tolerate a Well Drafted Will.

A Powerful Will is what all South Africans deserve. A Powerful Will is tailored, like a fine English suit or a beautiful Swiss mechanical watch. It takes many years of study, razorlike precision and vast amounts of forethought to compile. It requires the same extensive approach, no matter the size of the estate or the complexity of the structures involved. It might look simple once completed but, as with so many things in life, its simplicity can be deceptive and its value measured not by that which is said, but by that which is by design, omitted.

Until next time,

Sydney Eckley

PS: I got clarity on the John Milton credit thing. The unnatural intellect states: “Although Milton’s work does delve deeply into concepts of human will and divine authority, especially in the context of his views on free will and predestination, Powerful Will does not appear as one of the 630 words, terms or phrases attributed to him in historical or literary records.”