Certain provisions in a will could be invalid

Testators can rightly argue that an inheritance is a privilege and not a right, and can be prescriptive about it. However, the last statement has limitations.

If, for example, a father bequeaths his farm to his son on condition that the son may never sell and/or mortgage the farm, such condition will be null and void and the son will inherit the farm without any restriction. This is regarded as a non-peremptory directive or merely an indication and is not binding, unless it indicates that someone else will benefit if such directive is not carried into effect.

In order to change the bequest into a peremptory directive, the father, for example, will have to state in his will that if the son wishes to sell and/or mortgage the farm, the bequest to the son will pass to another heir.

The word “wish” in a will must also be used correctly so that the testator's intentions are very clear to the executor. If, for example, the testator expressed the wish that his estate assets be sold, doubt could sometimes arise, depending on the exact wording, as to whether it is a directive or only a wish.

If the word “direct” is used, and depending on the exact wording of the specific bequest, there should be no doubt that the executor has to carry out such directive and sell the assets.

Provisions that are immoral (contrary to good morals of public policy), such as making your daughter's inheritance subject to the proviso that she has to divorce her husband before she can inherit, can also be deemed invalid provisions. The same applies to unfair discriminatory provisions that are in contravention of a country's Constitution and which could be construed as being racist and therefore unconstitutional.

Expert advice is therefore recommended when drawing up a will. Guard against "ruling from the grave".

The content in this article was provided by Sanlam Trust.

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