19 Estate Planning Experts Explain Will and Testament Pitfalls

19 Experts Warn Against Common Pitfalls When Drawing Up a Last Will and Testament

One of the places where you do not want to make a mistake in your life is in your last will and testament. That is because you will not be around to amend the mistake when it is realised – you would be dead.

Your last will and testament states your final wishes as to what will happen with everything you spent your whole life accumulating (your estate). It also makes provision for the most precious thing in your life: your children.

We have asked the experts, who deal with estates and estate planning, to explain some of the biggest mistakes and other mistakes they regularly find in a last will and testament.

Khalieda Osman, Attorney at Gunstons Attorneys

A badly drafted will can cause huge problems with the actual administration of an estate. There are plenty of pitfalls when drafting a will, what is said, how it is said and whether the formalities of executing the will are complied with.

For this reason, a will drafted by yourself is potentially dangerous and should be avoided.

If you get things wrong, it could have unintended consequences. You may simply not be able to achieve what you intended, or your beneficiaries could end up in an expensive court case as they battle over the interpretation of your words or actions, and some beneficiaries and potential beneficiaries will look for any loophole to exploit

The witnesses of a will cannot be beneficiaries to the estate in question, because acting as a witness will automatically disqualify them from inheriting. Therefore, one of the greatest problems arising from a self-drafted will is the failure to comply with the formalities of the Wills Act,

If the formalities are not complied with, the will would be regarded as invalid, even though the terms mentioned are acceptable.

Certain beneficiaries who are nominated in the will can end up being disqualified from receiving any benefit. This could be because the beneficiary:

  • Signed as a witness; and/or
  • Wrote out the will on behalf of the testator.

If a beneficiary does either of these, neither he nor she nor the beneficiary’s spouse is entitled to inherit.

Therefore, it is important to keep in mind that a will must be signed in the presence of two or more mentally competent witnesses over the age of 16, who must be present simultaneously with the testator at the time of signature. If your will consists of more than one page, every page must be signed by the testator and the witnesses.

When listing beneficiaries, the full names and ID numbers must appear exactly as they do in the identity documents of the beneficiaries. If the will and the identity document do not correspond, the executor will have to provide confirmation to the Master of the High Court that the beneficiary listed in the will and the person referred to in the identity document is the same person. This may also result in additional administrative fees depending on the situation at hand.

It is recommended that you review your will promptly after significant changes in your life, such as marriage, the birth of a child and retirement. Failure to do so could cause problems.

Reviewing your will only when there are significant life changes is the bare minimum. More frequent reviews are recommended to take into account the changes to laws that would have implications for your estate.

Mistakes many people make is that they have several subsequent wills in the custody of different people or places. Therefore, the wording of I revoke all previous Wills or other testamentary writings made by me, either jointly or singularly” must be placed at the beginning of any will.

Many people do not know about trusts and trusts funds, which include all the necessary provisions, such as taking into account the fact that minor children cannot inherit cash or moveable property. Assets can be administered for them by means of a trust, but in the absence of a trust, the money will be held by the Guardian’s Fund of the High Court.

Therefore, it is always important to have your willed drafted correctly and by someone who has the knowledge of the legal requirements to avoid any consequences.

David Thomson, Senior Legal Advisor at Sanlam Trust

If you have a will, you’ll have the last word on what should happen to the fruits of all your hard work when you are gone, right? Not quite.

Wills have split up families, turned siblings into prime enemies and wasted inheritance money on horrific court battles. Most people draft a will because they want to avoid inheritance battles, but these common mistakes can fuel more family feuds:

  • Vague language
  • Distributing your assets equally among heirs
  • Involving beneficiaries in the drafting of your will
  • Not making provision for minors’ inheritance

André Nortjé, Junior Associate Attorney at Schoeman Law Inc

Although a will may be considered to be a straight forward and uncomplicated document, there are quite a few legal and technical formalities that have to be complied with in order for the will to serve its proper purpose, i.e. to capture the intention and wishes of the testator/testatrix and to ensure that effect can be given to the provisions therein.

The biggest mistake people make in terms of their last will and testament is not updating and/or revising their will on a bi-annual basis or when circumstances change, i.e:

  • Entering into a marriage;
  • Acquisition or disposal of property;
  • Dissolution of marriage by divorce;
  • Birth of child (it is advisable to draft a new will to incorporate a testamentary trust deed whereby provision can be made for a minor beneficiary);
  • Death of child; or
  • Birth of grandchildren.

Below is a brief practical example indicating how not amending your will after a divorce can complicate the administration thereof:

Testator X died in 2010. In his last will and testament, dated in the year 2001, he appointed his ex-wife Y, which he had divorced in 2008, as the executrix of his estate as well as the sole beneficiary of the estate.

His widow, Mrs X, to whom he was married to out of community of property at the date of his death, then disputes the provisions of the will and wants to remove Y as the executrix. She also disputes the validity of Y being the sole beneficiary. This will cause uncertainty as to what the last wishes and intent of the testator was.

In terms of section 2B of the Wills Act, No 7 of 1953, if a testator dies within three months of becoming divorced, his ex-spouse will be deemed to have predeceased him. Thus, she will be excluded from inheriting to the extent that the ex-spouse is appointed as a beneficiary in the relevant Will – unless it appears from the will that the deceased wanted to benefit his ex-spouse.

Accordingly, it is extremely important to keep a will up to date as circumstances change.

People also make mistakes with regards to their last will and testament when they attempt to draft their own wills or obtain a template from the internet. These mistakes occur quite often and they can have detrimental effects.

Some of the common mistakes found in a will and testament when it is not drafted by a professional are:

  • The provisions of the will do not clearly indicate the intended beneficiaries or do not accurately describe such beneficiaries, executors or trustees (if applicable).
  • The will does not comply with all the required formalities as provided for in the Wills Act 7 of 1953.

Some of the common mistakes regarding formalities are:

  • Testator/Testatrix and two witnesses have not signed correctly. The testator, as well as two witnesses, need to affect their full signatures at the bottom of each and every page of the will;
  • No executor, trustee or any beneficiary of a will may sign the will as a witness or help the testator in the drafting or signing thereof. Any such person, including the person who drafted the will, may be disqualified from inheriting in terms of such a will.
  • Amending a will incorrectly or not completely. No amendment made in a will shall be valid unless the amendment is identified by the signature of the testator in the presence of two or more competent witnesses present at the same time. The amendment is furthermore identified by the signatures of such witnesses made in the presence of the testator and of each other.

It is further also important for the testator to sign a living will that directs which medical treatment(s) should be given, under directed instances and to which extent it is to be administered, when a person cannot direct so themselves. A living will also states who may make certain decisions on a person’s behalf when he/she is not able to do so.

Liesel Greyvenstein, Director of Greyvensteins

The most common mistake people make in their last will and testament is getting an heir or beneficiary to witness the testator’s signature. In such a case, the witness is disqualified from inheriting. Handwritten wills also pose a problem as the testator often requests a child to write out the will. Such a child is then also disqualified as beneficiary.

It is of vital importance to make provision for testamentary trusts for minor heirs. Should a minor heir inherit money, such monies will be paid to the Master of the High Court’s Guardian’s Fund and will remain in the Guardian’s Fund until the child turns 18. Needless to say, the funds will attract minimal interest. It is advisable to create a testamentary trust in your will should you have minor heirs to allow for the proper investment of funds on behalf of the minor and for someone (called the administrator) to be able to pay for living expenses and ensure that the minor’s standard of living is maintained.

Lastly, people often forget to bequeath the remainder of their estates. They are so preoccupied with leaving specific assets to specific beneficiaries that they forget about the remainder as a whole.

Anika Scholtz, CEO/National Executive: Operations of Vital Consult

Life changes happen regularly and unannounced. One often neglected item in our industry is the regular reviewing of the beneficiaries of our clients’ life insurance policy, particularly after a life changing event such as death, divorce or birth of a child. The life insurance policy, which is intended to protect and support the future of loved ones, may, because of neglect, result in unwanted consequences for dependants after the death of a client.

Jack recently divorced. Jack has a minor daughter, Kate, who is 9 years old. Jack’s ex-wife is still the beneficiary of his life insurance policy. Jack makes a mental note to nominate his daughter, Kate, as the sole beneficiary of his life policy.

What will happen if Jack passes away before he has the opportunity to change the beneficiary on his life policy? Will the proceeds of his policy be paid to his ex-wife and will his daughter, Kate, be left without any rights to the proceeds of this policy? The reality is that circumstances like these often occur in practice. In this case, Jack’s policy would have been paid to his ex-wife and not to Kate.

BUT, let’s say Jack did get the chance to revoke his ex-wife and nominate Kate as his beneficiary on his policy. The question now is, as a minor, would Kate be entitled to receive the proceeds? The general position in South African law is that the benefits accruing to a minor would be paid over to the Master of the High Court to be retained in the Government’s Guardian Fund until the minor reaches the age of 18. Life insurance policies, however, differ in that the insurer will pay the proceeds directly to the minor regardless of his/her age. In reality, this means that the minor’s legal guardian will generally administer the funds on the child’s behalf. In Jack’s case, Kate’s legal guardian, Jack’s ex-wife would thus administer and have control over the proceeds, even though she is no longer a beneficiary on Jack’s policy.

To prevent this from happening, a Testamentary Trust, created in terms of Jack’s Will, can be nominated as the beneficiary of his insurance policy. The insurer will then pay the proceeds of the policy to the Trust for the benefit of the beneficiaries of the Trust. In his Will, Jack can nominate Kate as the beneficiary of the Trust.

With Jack’s Legacy Protection Plan in force, he has peace of mind that Capital Legacy will create and manage the Testamentary Trust on his behalf upon his death until Kate reaches the desired age. All Trustee fees (initial as well as ongoing fees) will be taken care of.

From Jack’s example, it is clear how important the decision about who to nominate as the beneficiaries on a life policy is, as well as how vital it is to regularly review your clients’ policies and beneficiaries in conjunction with a Last Will and Testament.

Christo Mulder, Attorney, Notary & Conveyancer at Christo Mulder Attorneys

In practice, we have had problems with implementing Wills for the following reasons:

  1. The will must be correct - we still get heirs who sign as witnesses.
  2. The law on marital property provides that if the deceased was married in community of property, he or she cannot decide about the surviving spouse's assets.
  3. The content of a will must be clear and practicable:
    • A vague will does not lead to the execution of the will.
    • What is the inheritance of a child who dies with you in an accident? Need to specify.
    • A minor child - create a trustworthy trust with specific provisions or otherwise the inheritance will fall towards the guardian fund.
  4. Wills that become an emotional document are practically impossible (E.g. my son becomes not entitled to any inheritance because he is gay).
  5. Display a successive Executor/Trustee member.
  6. It is always good to insert contact numbers/addresses of heirs who are overseas or far away so the executor can locate them.

Johan Steyn, Manager at G&S Insurance Consultants

The biggest mistake people make in terms of a last will and testament is to not name a beneficiary and/or guardian.

Other common mistakes people make in their will and testament include:

  1. Failure to change the will or beneficiaries after a divorce.
  2. Assets and liabilities are not up to date.
  3. Witnesses signing the will and testament must not be beneficiaries or part of the will.

Jaco van Niekerk, Senior Financial Advisor at LUMENROCK Financial Consultants

Your last will and testament is probably one of the most important documents you are likely to draw up in your lifetime. Yet it is often one of the most neglected areas in peoples’ financial and family planning. Your last will and testament speaks on your behalf when you are not able to do so anymore, and therefore should be very clear about your wishes with respect to your assets and dependants.

This article aims to highlight some of the main pitfalls when drawing up and maintaining wills, although it should be noted that there may be many more areas of concern. At LUMENROCK we always recommend to our clients to obtain expert estate planning services to prevent these pitfalls.

When drawing up a will
  • Will is not signed correctly: We often find that wills are not dated. This creates a problem at death, especially if there is a previous will that was replaced by the will in question. Wills should also be signed by two witnesses in the presence of the testator and of each other. If not, the validity of the will may well be challenged in court when disputes arise.
  • No provision for cash in the estate: It often happens that monetary bequests are made to beneficiaries, but that no provision is made for the expenses of the estate. The expenses will always have preference over any bequests, and failure to provide liquidity in the estate can have far-reaching consequences for beneficiaries. The main expenses in the estate include executor fees, capital gains and income taxes, estate duty, transfer costs on property, maintenance claims and any liabilities of the deceased.
  • Vague beneficiary details: When naming a beneficiary, it is important to be very specific as to who the person or organisation is. Use full names and identification numbers, as well as relation to the testator to avoid any confusion.
  • Not making provision for guardians for minors: Failing the appointment of guardians for minors, the courts will determine them according to the intestate estate laws. Also, ask the permission of the potential guardians to act as guardians before appointing them in your will.
  • Failure to create a testamentary trust for minor beneficiaries: Minors may not directly inherit cash or movable property, and such inheritances will be held by the Guardian’s Fund of the High Court unless provision is made in the will to administer these assets in a testamentary trust or existing inter vivos trust.
Maintaining a will
  • Updating a change in marital status: This is a very common problem when people get divorced and/or remarried. Not updating your will when your marital status changes, may result in benefits going to the wrong beneficiaries.
  • Updating the will when changes in assets occur: Acquiring or dispersing of assets can have a significant impact on the composition of your will. Not only does it have an impact on the beneficiaries where for instance assets are divided for equitable distribution, but it may well have significant tax implications as well.
  • Changes in legislation: The estate planning law environment changes on an ongoing basis with effects on the tax treatment of estates.

These are just some areas where problems may arise when deceased estates are wound up. There are many factors to take into consideration, which will directly impact the ability of the executor of the estate to correctly execute your last wishes. No two estates look the same. Setting up and maintaining a last will and testament requires specialist knowledge and expertise. LUMENROCK, through our subsidiary Dölberg Fiduciary, are well positioned to assist clients in structuring estate plans that will ensure the most efficient and cost-effective transfer of wealth for future generations.

Ben Charlton, Financial Planner at Ben Charlton Financial Planning

No one likes the idea of the possibility of death, but having a Will in place is a way to ensure that your final wishes for your family, assets and property are followed. Often we don’t think about death or we believe that if we plan for it, it will come sooner. But not planning and not having a Will in place could leave your loved ones destitute.

There was once a gentleman who started a business and over time it started to grow. His sons joined him in running the business and later their wives were also employed. This successful family business was going from strength to strength until the father suddenly had a heart attack and died.

Unfortunately for the sons, their father did not have a will in place. So, even though it was his intention to leave the company to his sons, the courts had to take over to decide what would happen according to the laws of the country and divide the assets between the spouse and children.

At the same time, as the business was in the father’s name, all the business accounts were frozen. Therefore, suppliers, rent and salaries were unable to be paid. Long before the two years it took the court to decide on who would inherit the business, the business closed down as it was unable to run. If a will was in place the family legacy would have continued.

With regards to family, people often forget to cater for their minor children – not on purpose but by making simple mistakes in their will. Common mistakes are spouses leaving everything in their estate to each other. On the surface, it seems fine as if one spouse were to pass on then the other will inherit everything and continue to look after the children.

The problem occurs if both parents are to pass away at the same time, i.e. in a car accident. As there were no guardians nominated in the will, firstly, there is uncertainty on who will look after the children and, secondly, any money from the estate of the parents will be placed into a government institution called the Guardians Fund. Money is paid out at intervals to protect the children and trying to get the money is a long and difficult procedure.

Ideally, you should have your will drawn up by a financial advisor as they will expertly guide you into leaving a neat, practical and enforceable Will, and not a legacy of disaster. They will be able to help you avoid mistakes such as not having the right executor; making sure your will is valid; ensuring the witnesses are legally acceptable; guiding you to ensure you have enough money in your estate to carry out your wishes; advise you on the tax consequences; and finally they will ensure that all the life covers and policies you think you have in place are actually in place and left to the right people.

Jeandre Nortier, Wills & Deceased Estates Executive at Ambition Financial Services

Some common and less common mistakes found in a will and testament are:

  1. Heirs/beneficiaries that sign as witnesses of Wills. This will disqualify them from inheriting in the Will as they were meant to.
  2. The same witnesses that signed the Will cannot be the Executors of that Will.Bequeathing inheritance to minors in a Will, without
  3. Bequeathing inheritance to minors in a Will without the provision of creating a testamentary trust.
  4. Not being clear enough when stating what must happen with your estate, also not advising what must happen to the residue.
  5. Witnesses must be 14 years of age or older, and testator/testatrix must be 16 years of age or older. They must also be competent. Witnesses do not need to know the contents of the Will; they merely sign to confirm that the Will was signed in the presence of the testator/testatrix and the competent witnesses on the same day.
  6. Not appointing an executor of their estate.
  7. Not noting marriage regime in Joint Will. This will not render the Will invalid but plays a role in how estates are wound up and finalised, and how you may bequeath your assets when you pass away. Married In Community of Property means that your spouse already has claim to half of everything that you own (your estate), even the debt that you have accrued during your lifetime.
  8. Not updating it frequently enough in events such as marriage, divorce or having a child, as your latest Will is always the one that will be accepted by the Master of the High Court. For instance, if you have a child, but your Will states that your entire estate must go to your friend, your child will not inherit at all.
  9. Not appointing guardians in respect of minor children in a Will. This will cause unnecessary stress and conflict for grandparents and/or friends who will then need to apply to take custody of your children, where if you noted this in your Will, it would have cleared up any confusion.
  10. Not leaving a Living Will, therefore putting pressure on your family or spouse to decide on the way forward.

Leon Jacobs, Legal Manager at Standard Trust Limited

The biggest mistakes people make in a will and testament are:

  • People tend to insert too many conditions which may not be practical/applicable to eventualities that occur in the future. They tend to try and rule from the grave which may make the administration of the estate impossible.
  • People further do not make provisions for eventualities which may occur between the execution of the will and their passing. Eventualities include the death of a nominated heir, a divorce and the birth of a new child.
  • People also do not adhere to the formal requirements for the valid execution of a will as contained in the Wills Act.

Other mistakes people make in a will and testament include:

  • Impractical bequests, specifically in relation to testamentary trusts, are common mistakes.
  • Less common mistakes include the incorrect application of limited interests created in their will.

Ester Ochse, Channel Head at FNB Advisory

One of the most common mistakes people make with a will is not updating it on a regular basis, especially if a life changing event happens such as having a child, getting married or getting divorced. One should revise the will on an annual basis to ensure that it is in line with the testator’s goals and needs.

If there are minor children involved then it is best to nominate a guardian for them and create a testamentary trust, with a reputable organisation, that will look after the welfare of the children until they are at least 18.

Gerhard van der Berg, Director of VDJ

Here are some common mistakes found with wills and testaments:

  1. Lack of simplicity/clarity, thereby making it difficult to understand what the person really wanted to do with their assets (keep in mind that they have passed on now).
  2. Forgetting to stipulate that the Master should not demand security from the executor.
  3. Not signing the will in the presence of all the witnesses and forgetting to sign all pages.
  4. Not cancelling/recalling previous will(s) when drafting their new will.
  5. Not revisiting their wills regularly to keep it up to date with changing circumstances; for example divorce or death of a beneficiary.

Pieter Geldenhuys, Certified Financial Planner at PMG Financial Services

A marriage contract plays a very important role when a will is drawn up. If you are married in community of property, you cannot put an asset up for inheritance if it is not merged because you own only half of the asset.

Married couples also make mistakes in terms of execution of the will. For example, many times the man/testator will say that if his wife lives or stays with another man, the house must be sold and the money must be distributed as recommended by him. But who is going to have a look each night to see who is sleeping with your wife? The will is unworkable.

If a Testamentary Trust has to be established, your will must specify what the trust's duties will be and also who will be the income and capital beneficiaries, because the will becomes the deed of trust.

Make sure you appoint someone as executor who has already done the work. It's not that easy and no will is going to work the same as the previous one.

Finally, sign your will together with the witnesses and do not change your will on your death bed. It will end up in court – even if you are no longer around.

Martin De Kock, Director and Financial Planner at Ascor Financial Advisors

The most common and costly mistake made when drafting a will is to draft the will in isolation, i.e. without performing an estate liquidity calculation and reviewing the testator’s life insurance and policies, and without properly analysing the testator’s assets and liabilities.

The estate liquidity calculation indicates if there are enough funds and cash in the deceased estate to settle all estate liabilities (debt) as well as estate expenses e.g. executor fees, estate duties, capital gains tax, income tax etc. There may be sufficient proceeds from life policies to cover these expenses but, if the policies have nominated beneficiaries, the proceeds do not flow into the estate to cover the expenses but are paid directly to the beneficiaries.

If there are insufficient funds to pay the estate expenses, the executor may be forced to sell estate assets to generate the necessary funds. Such a forced sale of assets could very well result in proceeds less than the fair market value of the assets being sold. This is to the detriment of the heirs.

By doing an estate liquidity calculation and a proper assessment of the testator’s life policies, assets and liabilities, a liquidity shortfall can often be addressed by merely amending the beneficiaries on the life policies and making provision for some of the policy proceeds to flow to the estate. If there is insufficient life cover to address liquidity shortfalls, new life policies can be taken out.

A comprehensive financial planning exercise, performed by a Certified Financial Planner or someone with similar experience, should prevent the mistake when drafting a last will and testament.

Ashley Percival, Certified Financial Planner at GlenFin Financial Services

In short, the two biggest problems I encounter in respect of Wills are:

  1. Not having a last Will and Testament; and
  2. Not updating your Will regularly.

When you have decided to draw up a Will, take care that it’s not drawn up in a willy-nilly fashion. You should consider the following when drawing up a Will:

  1. List your Assets
  2. Your beneficiaries and allocations to them
  3. Decide on an executor(s)
  4. Decide on a guardian(s)
  5. Testamentary trust
  6. Estate duty
  7. Do you have enough liquidity in your estate?

Angela Sayle, Certified Financial Planner at Southwood Financial Planning

  1. The biggest mistake is usually that the will has not been signed correctly and is therefore invalid. Often, the will is drafted (but not signed) or is witnessed by either family members or spouses who are beneficiaries of the will, or witnessed by the executor, trustees or guardians named in the will. This does not comply with the Wills Act and makes the will invalid.
  2. If there is no valid will, assets on death will be distributed in terms of the provisions of the Intestate Succession Act of 1987.
  3. A will must be changed before a divorce or, if not, within three months of the date of the divorce order. If the testator dies three months or more after the date of divorce, the ex-spouse will inherit as if it was the intention that she should inherit.
  4. South Africans are investing more and more offshore. Where there are offshore assets, it is important to have a “worldwide” will drafted that governs all assets no matter where they are situated in the world. A single “worldwide” will is sufficient for assets such as cash investments, shares and policies but you are required to have a will in every country in which you own immovable property.

Rene Johnson, Independent Financial Advisor at Ternary Financial Services

At some stage in one’s life, you realise that

  • you will die, even if you think that is unlikely;
  • you are ageing faster than you anticipated; and
  • you have accumulated assets and your cat cannot be a meaningful beneficiary.

The result of these thoughts leads you to scribble down some instructions for what you want to happen with your assets, should you by accident die tomorrow, and filing it into your drawer with all the other odds and ends.

Then you have a conversation with a friend or, if you are fortunate to have made the correct decision about this aspect of your life, a financial advisor. This person suggests you should consider drawing up a legal will. That means you must make decisions regarding how to allocate your possessions.

What are your concerns?

  • Your parents? No, cannot stand your mother.
  • Your pets? Yes, do want them to be cared for after you are no longer around.
  • Your sister? Yes, she has children who need to be educated properly and could do with the money.
  • Oops, your spouse? Of course. He or she should have priority. Or not?

It is a mistake not to give the allocation of your assets serious thought. It is a mistake to let personal feelings determine the allocation of your assets. You need to set out on a spreadsheet those persons/pets you worry about, or not. And next to it the assets – it is a mistake not to translate them to cash because that is generally what your Executor will do.

How much income do you think one needs for living? You should consider translating what you leave for a beneficiary and how much income he/she can draw from the capital – especially if your cats are being taken over by one of your beneficiaries!

On a practical level: it is a mistake – a major mistake – to write out a “will” and stick it in your drawer. The number of these “wills” declared invalid is frightening. Why? It should, sorry to say, be a legal document with legal language.

You need to make sure that you understand the language when it is drawn up. It goes a long way to those left behind with your mess not resenting you for not doing a proper job. It should have witnesses – two independent, unrelated adult witnesses – who sign and are happy to give their identity numbers and addresses.

It is NOT a mistake to ask your financial advisor (who, for sake of this article, is assumed to be an independent advisor in the true sense of the word) to help you. He/she will deal with an attorney or specialist in drawing up wills legally.

On a more personal level: it is a mistake to think that, once you have a will, you are done with that part of your life. You are not. You need to review it every two to three years. Circumstances change…you change. Keep it up to date.

It is a mistake not to consider whether a Testamentary Trust is necessary to take care of the capital you leave to your sister’s children, your mother or your pets.

It is a mistake to not ask questions about the appointment of the Executor of your estate – particularly when an attorney, who you do not know, drafts the will. Who is this person? How efficient is the person in administering wills? Is the same person a Trustee on the Testamentary Trust and, if so, why?

It is a mistake not to ask questions about the costs associated with your estate, i.e.

  • Executor’s fees;
  • Trustee fees (if a Testamentary Trust is necessary); and/or
  • Advisor fees (whether he/she is involved in the administration of the Estate or giving advice on the money invested in the Trust).

It is a mistake not to have a will. Ask yourself: why would you want anyone – other than a person you have chosen and appointed – to scratch around in your private affairs? Perhaps it is also a mistake not to leave a letter or two to those you leave behind to tell them how much you love and appreciated them.

Drawn up a will already?

Sean Hefferman, Attorney at LP Baartman Attorneys

In my humble opinion, the biggest mistake someone can make in their last will and testament is appointing an executor that does not have experience in estate planning and administration.


Mistakes made in a last will and testament are mostly to the detriment of the beneficiaries. Aside from not leaving a will and testament at all, it is evident that people often make crucial mistakes when drawing up a last will and testament.

From the experts’ advice, people frequently make errors relating to the signing of the document. Another common pitfall is not updating a will and testament regularly to accommodate changes in assets and life – especially with regards to divorce. Sadly, mistakes involving testamentary trusts and the guardianship for minor children are also commonplace.

We would like to thank the experts for their advice on the pitfalls of drawing up a last will and testament. A will and testament is the most important legal document you will ever sign. It is best to seek the help of estate planning experts when drawing up and updating your last will and testament.