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Trusts and Estate Planning

Whenever we form or amend a trust for a client, we write a Will for the client and their spouse at no charge. This is essential because the trust and the Wills are closely linked and refer to each other.

I am usually appointed as the executor and should, therefore, be holding the originally signed Will. Yet I estimated that 80% of the Wills that I prepare and send for signature are never returned.

Let’s look at the consequences –

  • The client will die intestate. That means that his or her assets will be distributed according to the rather complicated law of intestate succession. This distribution is hardly likely to be in the manner that the client chose in their Will.
  • If there’s money in the estate and this ends up (through the consequence of the Intestate Succession Act) being distributed to a child under the age of 18, it will have to be deposited into the Guardian’s Fund which is administered by the Master of the High Court. And for the child’s guardian to access that money for the kid’s benefit is worse than drawing teeth.
  • All the benefits which the Trust Deed accords to the client, such as appointing a succeeding trustee will be of no value if there’s no Will to take advantage of them.
  • Any intention to leave a legacy via our special provision in the Trust Deed will fail, because the trust will continue as a discretionary trust available to be looted by future descendants.

So, not only must you draw up a Will, but you must sign it and leave it in the executor’s hands for safe keeping.


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