For most people when drafting a Will there is the obvious desire to control the allocation of their assets after their demise – hence the need for a Will in the first place. However, it is possible to be too controlling in a Will and to create a legacy that is inflexible, unrealistic and frustrating for your heirs.
According to David Knott of Private Client Trust, the fiduciary services division of Private Client Holdings, testators are often inclined to have very definite ideas as to what should happen to their hard earned estate after they have passed away and the Will would therefore be constructed in very precise terms dealing with each of the major assets spelling out how and when this is to be disposed of, or retained for future generations.
“The education and career paths of children would be decreed; along with where and what they are to study and at what stages of life should capital be released to them from trusts. A parent is often hesitant to let a child have access to capital too early in life as he might have struggled financially and feels that the child could squander or become lazy if capital comes too easily.”
“All these inclinations are sound in logic as the parent is only wishing for the best for his or her family, but we cannot predict the future and the “rule from the grave” instructions cannot anticipate how circumstances will change after the death of the testator,” says Knott.
Financial markets could be in turmoil; the family business in a trough; the children may have no desire or aptitude to follow the ‘chosen’ career path; they may have moved to another country or be going through an emotional divorce or rocky insolvency.
Knott advises that it is for these and many other reasons that a Will must be as flexible as possible. “An effective Will should be able to consider variable possible future scenarios and adapt accordingly.” Maybe the trust should not terminate just yet; perhaps a holiday home should be purchased or the business sold.
However, Knott says that for this flexible Will to be efficient, the testator must have trust in his executor and trustee. The executor and trustee must be of impeccable integrity, have expert financial ability to manage the affairs of another and have the emotional intelligence to deal with beneficiaries who may not have the financial nous just yet.
“It is highly recommended that one contracts the services of professional fiduciary experts when drafting your Will and choosing your executor and testator,” concludes Knott.
16 – 20 September is National Wills Week, a time to take stock of ones Will to ensure it is up to date and suitably expresses your wishes. Private Client Trust are available for advise and guidance through the month of September. For more information contact David Knott or Sarah Love at Private Client Trust on 021 671 1220.
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