“One ring to rule them all.” (JRR Tolkien in The Lord of the Rings)

When it comes to making sure that you get to choose who inherits what from your estate, there really is only “one will to rule them all,” because our law recognises only one type of testamentary will: your “personal will” or “Last Will and Testament”.

But what about all the advice to put in place a whole range of other “wills” as well? Do we really need to have an “offshore will”, a “digital will”, a “business will”, an “ethical will” or a “living will”?

While calling them all “wills” is confusing (and a real problem if it misleads anyone into neglecting their foundational will as recognised by our Wills Act), these other types of “will” are all useful concepts.

We’ll have a look at them all in turn, but let’s start with the one and only…

One will to rule them all

Often referred to as your “personal will” or “Last Will and Testament”, this is quite possibly the most important document you will ever sign. Whether it’s your individual will or a will made jointly with your spouse or partner, it’s the only way to ensure that your last wishes are honoured, that your assets are distributed to your chosen heirs in accordance with your directions, and that the executor of your deceased estate is someone you can trust to act with professionalism, integrity and as much speed as possible.

Because your personal will lies at the heart of your estate planning, having a professional draw it for you is a real no-brainer. Not only must it be clear, consistent, and concise enough to avoid any possibility of doubt or dispute among your heirs, but it must comply with all the formalities required by our Wills Act.

It must be a physical document, in writing (written, typed or printed) and signed by you in the presence of two competent witnesses. While that requirement will presumably fall away as our laws evolve to allow us to draw electronic wills, video wills and the like, for now a physical, ink-signed document remains essential. If you leave only a non-compliant will, your heirs will have to ask a court to have it accepted as valid – a recipe for uncertainty, delay, cost, and dispute at the worst possible time for your loved ones.

Where do the “joint will”, “mutual will” and “mirror will” concepts fit in? Often useful for couples wanting to combine or link their personal wills with reciprocal provisions, choosing between these rests on a complex mix of personal circumstances and legal, estate and tax planning angles. Please do ask us for advice specific to your circumstances.

Do you also need an offshore will?

If you have offshore assets, you may be advised to make one or more foreign wills in addition to your South African one. You need specialist advice here, to ensure not just the validity of both your South African and your foreign will(s), but also their compatibility with each other, and their overall tax and estate planning efficiency.

What about a “digital will”?

A modern concept that’s been gaining traction lately is the “digital will” idea. It’s essential to understand that this is in no way, shape or form a substitute for your personal will. Nor is it in any sense an invitation to make an electronic or online personal will.

Your “digital will” is not the place to leave digital assets to anyone: you must still do that in your personal will. But it is the place to list all those digital assets, plus all your other online profiles, and to tell your executor how to access them. It’s also your chance to tell everyone what you want them to do with your social media accounts.

Four suggestions:

1. To avoid confusion with your real (i.e., personal) will, don’t call it a “will”. Call it your digital wishes, or digital folder, or something similar.
2. Separate it from your personal will by incorporating it into a separate document. If you don’t yet have a “Notes” folder with all the information and documents your executor and heirs will need when winding up your estate, now’s a good time to start one.
3. Make sure your list is comprehensive, or your heirs may never find out about all those crypto assets you’ve painstakingly accumulated for them.
4. Don’t ever record passwords, PINs and other security credentials in an unsecured document. Consider using a reputable password manager with an emergency-access facility.

Do you need a business will?

If you have a business, think about what you want to happen to it if you get run over by the proverbial bus tomorrow. Legally you must bequeath your business as an asset (as a sole proprietorship perhaps, or as shares in a company) in your personal will. Your business will is where you say what you want your heirs, and perhaps also business partners and managers, to actually do with it.

Without guidance, your loved ones could have no idea how they should handle things practically. If confusion and dispute set in when you die, they could tear your whole legacy apart.

Again, share your guidance in a “Notes” document supplementary to your personal will, and rather don’t call it a “business will”. What you actually need is a succession plan, so call it that, and structure it carefully.

The “ethical will” concept

More commonly encountered overseas, the “ethical will” has no legal effect and does not relate to your assets but rather to the personal legacy you want to pass on to future generations.

You might leave a “legacy letter” sharing with all your descendants your personal values, beliefs and life lessons, recording your family’s history and heritage, and leaving personal messages for individual family members. It’s a great way of supporting your heirs in living their lives to the fullest while preserving and enjoying the material wealth they inherit from you.

Your “living will” or “advance medical directive”

Your “living will” or “advance medical directive” has nothing to do with leaving assets to heirs, or appointing executors or guardians or the trustees of family trusts.

It’s your expression of your wishes, and your directions to your family and to your medical carers, as to what you do and don’t consent to when you are no longer able to communicate for yourself.

While the concept’s legal status is still unclear, it has a large measure of professional support and will help, guide, and comfort your loved ones when they need it most, so don’t leave this until it’s too late!

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

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