Will you be misunderstood?

Wills need to be worded very carefully to avoid confusion and misunderstanding during an already emotionally difficult time (and especially so when leaving property behind). Intentions can be easily misconstrued when layman rhetoric is interpreted in a legal manner.

Even fairly straightforward sounding clauses can be interpreted differently. When it comes to property, you can assign several different rights to heirs. There are some presumptions in our law that will favour one outcome over another and there are three general interpretive principles in place to avoid conflicting views:

  • The “plain meaning rule” states that the contents of a will should be taken at face value, using strictly literal
    interpretations.
  • The second rule qualifies the first. It states that one must consider the testator’s intention (the person who has made the will) in using particular words, and not merely the meanings of the words themselves. This is due to the fact that wills are often drafted by laypeople who may not understand that particular words and phrases could have a particular technical meaning.
  • The third rule is to read any contentious words or phrases within the context of the overall will.

Heirs to the estate, the executor of the estate and the Master of the High Court of South Africa (who must confirm the validity of the will) often have conflicting views about the provision of a will. In these cases it is up to the executor to make a decisive interpretation of contentious clauses, although the heirs may formally object to the interpretation.

Always be clear and use plain language to avoid ambiguous words and phrases so that your true intention is reflected in your will. Also, limit the use of legal terminology to only include instances in which you or your will drafter have a thorough knowledge of the practical implications and legal consequences.

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Source: fin24

Posted in Blog, wills.