We all know that the will forms a vital part of the estate planning foundation. It is unfortunate then that the foundation of a deceased estate is so often left crumbling due to simple oversights in the drafting of the will.

Just as with any piece of legal writing, the wording of your will matters. To offer security and closure to your loved ones and those who survive you, a will must be drafted and worded to cover every aspect of your life and your estate. However, the physical act of drawing up the will has just as much of an impact on the document’s value as the wording itself, and may even disqualify the individuals who helped to draft the document from benefitting from it.

During the drafting of the will, it is important to note that individuals are disqualified from inheriting from the will, being nominated as guardian, or acting as its executor if they do any of the following:

  • Sign as a witness (unless two other witnesses who will not benefit from the will sign the document as well)
  • Sign the will on behalf of the testator, even if this is at the direct request of the testator or in the presence of witnesses
  • Write any part of the will in their own handwriting

These disqualifications also count for the spouse of the individual who took part in the aforementioned actions.

In cases where beneficiaries (or their spouses) were a part of the drafting process in these manners, they can only benefit from the will once they have proven to the court that they did not defraud the will or influence the testator during the drafting process. The onus of proof thus lies with the beneficiary and not with the court, which places the beneficiary in a difficult legal position.

This disqualification exists to prevent undue influence over testators who are in poor health or in a poor state of mind. When a person who stands to gain from a testator played a part in drawing up the will, it invites speculation as to the possibility of undue influence or even fraud.

While these may sound like simple actions to avoid, in practice, it is quite easy for a beneficiary to take part in the drafting process, especially when the testator’s health is waning. It is common for testators in poor health to request that a representative sign the will on their behalf, and in the absence of a standing relationship with an attorney, they often turn to loved ones for this request, unknowingly disqualifying that loved one from the benefit of the will.

Another occurrence where beneficiaries are unknowingly disqualified from a will is where the testator leaves a blank space next to their assets, requesting their loved ones to fill in their names next to the items they wish to inherit. While it may seem like a thoughtful idea at the time, such a list should be finalised before the drafting of the will and rewritten by a non-benefitting third party as part of the final document.

Drafting a will is a vital part of protecting your legacy and providing a sense of closure to those who survive you. While the idea of drawing up a will may seem easy, a simple misstep in the execution can leave heirs out of the will and, in the worst-case scenario, can place the future of minors in jeopardy when appointed guardians unknowingly disqualify themselves from the will.

Fortunately, it’s easy to avoid unknowing disqualification when you rely on the guidance and assistance of a trusted attorney and draw up your will before your health no longer allows you to see to your own affairs. So, make sure your heirs aren’t left in the cold this winter and get your will drafted by one of CMM Attorneys’ trusted team members.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)