How to Ensure Your Will Is Both Valid & Executable

Your Will could leave your executor in a corner and your heirs compromised …………..  read further an article by Mauro Ghillino

When considering the effectiveness of your Will, it is critical to look beyond how well the drafting and signing of the document has been concluded. The validity of the Will is of great importance, but can prove ineffective if the Will is not executable.

So, what should you be looking out for?

The requirements for a valid Will are quite simple:

  • It must be in writing;
  • the signatory has to be 16 years and older, and be in his/her right mind at time of drafting the Will;
  • each page of the Will has to be signed, including the end of the Will – and the signature has to be executed in the presence of two competent witnesses who are present at the same time; and
  • these two witnesses also have to sign the Will in the presence of each other’s and of the main signatory.

It’s important to consider also that the requirements for an executable Will are very different to the requirements for a valid Will. Indeed, you might be shocked to discover that an executor’s primary function is not to give effect to the wishes expressed in a valid Will, but rather to wind up the estate of the deceased by bringing the financial affairs to an end. This means:

  • Presenting an original Will to the Masters office (sometimes a problem with joint Wills);
  • Settling outstanding debt;
  • Paying taxes and duties owed;
  • Paying the transfer costs of immovable property, and
  • Paying the administrative costs associated with the winding up of the estate and more.

Only once this is done can an executor give effect to the wishes expressed in a valid Will, provided they are not impossible to execute, against public policy or illegal. If the executor cannot perform his primary function mentioned above, the probability of him or her being able to perform the secondary function, i.e. give effect to the wishes expressed in a valid Will, is unlikely.

In essence, a valid Will, supported by a proper financial plan, should make it an executable Will -which thus gives the executor the tools to carry out the executorship.

So, when drafting a Will the following questions must be asked:

  • Are there any debts to be settled and if so, are there provisions for this?
  • Is consideration given to the impact of beneficiary nominations on policies?
  • Have maintenance obligations towards children, spouse or ex-spouse (or even elderly parents) been taken into account?
  • Have taxes and administrative costs, payable upon death, been provided for?
  • Are there trusts or business interests that must be considered when drafting the Will?

If these questions cannot be answered, it is likely that the valid Will might not be executable.

In short, it is important to remember that most robust financial plans start with a valid Will, and should end with an executable Will.