REVOCATION
KEY: The words in blue are pulled through from the information that was put on the Application Form entered on the online Will-drafting system.
STANDARD WILL CLAUSE
I , Sheldon Cooper (Identity Number 8610235225081), revoke all previous Wills, Codicils and other Testamentary dispositions previously made by me and declare this to be my Last Will.
WORLDWIDE WILL CLAUSE
I, Sheldon Cooper (Identity Number 8610235225081), revoke all previous Wills, Codicils and other Testamentary dispositions previously made by me and declare this to be my Last Will relating to my Worldwide Estate.
OFFSHORE WILL
The Revocation Clause is not applied in this instance. This is a custom Will that is drafted by the Technical Advice Centre (TAC) and is accompanied by a custom-drafted Worldwide Will.
In an OFFSHORE WILL the following clause is included:
“Revoking all former testamentary dispositions made by me in respect of my property of every kind situated outside the Republic of South Africa (my non-South African Estate)”.
Therefore, in the accompanying WORLDWIDE WILL it would then need to state that:
“I place on record that this Will deals only with my worldwide assets wherever situated excluding the United Kingdom and I direct that,
notwithstanding anything contained herein, this Will does not revoke any Will dealing with any assets situated within the United Kingdom”.
EXPLANATION OF REVOCATION CLAUSE
WORD DEFINITIONS
Revoke (verb): end the validity or operation of something; to cancel or withdraw
Revocation (adjective)
Codicil (noun): an addition or supplement that explains, modifies, or revokes a Will or part of one
CLARIFICATION/JUSTIFICATION OF REVOCATION CLAUSE
e instructions in a Will are only actioned upon the death of the Testator and may, therefore, be revoked by the Testator/ix at any time before his/her death.
It is important to revoke previously drafted Wills in the latest Will, otherwise all the Wills which are deemed to be valid (if they comply with the formality requirements) will have to be read together.
The revocation of an earlier Will only takes effect at the time of signing the latter document.
It is important to remember that when a Client has assets or business interests in a country that does not have the same “freedom of testation” laws as South Africa that this clause not be included – hence why we classify this as a custom Will, which is drafted by our Technical Advice Centre (TAC).
LAST WISHES AND SPECIAL TERMS
It is my wish that I be buried/cremated
It is my wish that my ashes be scattered in the Kruger Park.
CLARIFICATION/JUSTIFICATION OF LAST WISHES AND SPECIAL TERMS CLAUSE
BURIED OR CREMATED
The Testator/Testatrix can either specify the manner in which they wish to be buried, or not.
Very important: Clients should avoid creating a long list of wishes relating to their burial and cremation. Often the Will is only read approximately two weeks after the Testator/ Testatrix’s death and the family is left feeling guilty for not organising the funeral according to the Client’s wishes.
ORGAN DONOR
This is just a wish. The Testator/Testatrix needs to be registered with the Organ Donor Foundation – for the donation to take effect.
Capital Legacy can seamlessly assist with the registration by obtaining the Next of Kin details on the Application
Form or on the online Will-drafting tool. There
are no costs incurred when registering with the Organ Donor Foundation.
IT IS MY WISH THAT ....
This section is available for Clients who wish to make certain wishes. Remember, it is still a wish and not legally binding. Similarly, ruling from the grave is not accepted, for example, “my child has
to become a medical doctor before receiving his/her inheritance” or “my daughter can only inherit when she marries a lawyer”.
LIVING WILL
The Living Will is placed at the end of the Will and is discussed at the end of this document.
NB: Sometimes Wills are only brought out two weeks after the Testator/Testatrix’s death. Therefore, it is advised that everyone who includes a signed Living Will, separate it from their Will and store it in a place where the Family can access it.
The Testator/Testatrix should discuss their final wishes with their Family members, as they are the people who will action any funeral arrangements (without the Will).
BEQUESTS AND LEGACIES
Note: The Wills Act does not require that the Identity Number be specified in the Will for it to be valid; year of birth is enough.
I direct that any of my Heir(s) or Beneficiary(ies), as nominated by me herein, must survive me by thirty (30) days or longer in order to inherit or benefit from my Estate.
I specifically bequeath My House with address, 46 Hill Road, Good Hope, in Cape Town to my Trustees of the Amy Cooper Testamentary Trust,
a Trust to be created at the date of my death and subject to the terms of the relevant clauses below.
I bequeath the residue of my (Worldwide) Estate as follows:
50% to my Trustees of the Amy Cooper Testamentary Trust, a Trust to be created at the date of my death and subject to the terms of the relevant clauses below.
15% to my Trustees of the John Cooper Testamentary Trust, a Trust to be created at
the date of my death and subject to the terms
of the relevant clauses below.
15% to my Daughter, Agatha Cooper, born 2013
10% to my Goddaughter, Amy Farrah Fowler, born 1989
CLARIFICATION/JUSTIFICATION OF BEQUESTS AND LEGACIES CLAUSE
It is important to note that there are two types of bequests, Specific Bequests and Residual Bequests. Specific Bequests usually occur when the Testator/ix leaves a ‘gift’ as cash or in an item form for a specific individual. The Residual Bequests refers to the assets and items that are not specified and make up the remainder of the Estate
A bequest is a gift, and the Testator/Testatrix can therefore not dictate how the recipient must use their gift.
A bequest is an item/gift left to a specific person and can be an item such as a car/artwork/a business/a firearm/cash or property.
Dissuade the Testator/Testatrix from specifying details such as “my red Polo Vivo 1.4”, unless they have more than one. The Testator/Testatrix could sell it and forget that they had specified it in their Will. In such a case, the Executor will try to acquire the exact asset, in order to honour the bequest, failing which he/she would try to honour the bequest through a cash value, which will be taken from the Estate.
Be mindful, some items cannot be shared between people, such as a car, motorbike or firearm; or be bequeathed to a minor.
Consider who the item is being left to. The Client might need to make provision for a Trust to be set up for minor Children, into which any special bequests will be placed. Without a Trust, assets such as cars, motorbikes, houses will be left in the care of the Guardian, until the minor Child turns 18 years old.
Keep in mind when a Client bequeaths a firearm that this includes a process of registering the firearm with the police and the person receiving the firearm must go through the licensing process beforehand. Transferring of a firearm can hold up the administration of the Estate.
Residue of the Estate – This refers to the balance of the Estate that remains after payment of debts, Estate Duty and administration expenses, and effect has been given to the legacies and special bequests.
There is no need to list each item in the residue of the Estate, in the Will. However, for your information, this would include
personal assets, small items, life insurance policies, etc.
Beneficiaries – The general name for any person inheriting from a Testator/Testatrix’s Estate by way of a Will or laws of intestacy.
Heir – the Beneficiary who inherits the residual of the Estate by relationship, descent or through a Will via a legal process.
Legatee – a Beneficiary or entity that inherits a specific cash amount or specific asset from a Will.
ALTERNATE BENEFICIARIES
Note: This clause specifies what should happen to the inheritance when one or more of the nominated Beneficiaries predecease the Testator/Testatrix.
I direct that any of my Heir(s) or Beneficiary(ies), as nominated by me herein, must survive me by thirty (30) days or longer in order to inherit or
benefit from my Estate.
40% to my Daughter, Sandra Cooper, born 2014
60% to my Son, Paul Cooper, born 2010
Failing the survival of my Child(ren) as nominated herein, their inheritance is to be inherited by my Wife as nominated herein
80% to my Goddaughter, Amy Farrah Fowler, born 1989
Failing the survival of my Child(ren) as nominated herein, their inheritance is to be inherited by my Wife as nominated herein
50% to my Brother, John Cooper, born 1940
50% to my Sister-in-law, Jackie Cooper, born 1931
In the absence of any other relevant clause contained herein, in the event that any of my Beneficiary(ies) or Heir(s) predecease me, then such
Beneficiary(ies) or Heir(s) share of my Estate shall revert equally to my remaining Beneficiary(ies) and/or Heir(s) of my Estate or residue thereof
as nominated herein. If no such Beneficiary(ies) or Heir(s) survive me, then equally for the benefit of their Child(ren).
CLARIFICATION/JUSTIFICATION OF ALTERNATE BENEFICIARIES CLAUSE
Survives by
period of 30 days
– It’s a condition for
inheriting. It makes
the process of
administering the
Estate easier and
quicker.
Alternate
Beneficiaries –
Failing the survival of
your first nominated
Heir of the residue
Estate.
Predecease me
– This implies that
the Beneficiary
has passed away
before the Testator/
Testatrix.
Revert–
This means the
inheritance will pass
to or return to the
specified recipient.
Per stripes –
literally meaning
“by the stem or
bloodline”.
Without a clause
like this, the Estate
runs the risk of
being devolved
upon the Alternate
Beneficiaries
DEBT
I direct that should any of the above bequests have any balance outstanding in respect of any loan or purchase price relating to their
acquisition then such balance outstanding shall be paid out of the funds in my Estate, it being my intention that such bequests shall be
received free of any debt or encumbrance.
CLARIFICATION/JUSTIFICATION OF DEBT CLAUSE
You cannot bequeath debt to a Beneficiary. Therefore, all Bequests must be free of debt when transferred into the Beneficiary’s
name. This means that should the Testator/Testatrix still owe anything on an asset, that this debt be settled by the Estate before
the asset is transferred to the Beneficiary.
TRUST(S)
I direct that should any of the above bequests have any balance outstanding in respect of any loan or purchase price relating to their
acquisition then such balance outstanding shall be paid out of the funds in my Estate, it being my intention that such bequests shall be
received free of any debt or encumbrance.
AMY COOPER WIDOW’S TRUST
The sole income
Beneficiary of the Trust
will be my Wife, Amy
Cooper, until the date
of her death and only
after such date, the
Beneficiary(ies) in terms
of the clause below.
The capital
Beneficiary(ies) of
this Trust will be the
Beneficiary(ies) in
terms of the clause
below. While my
said Wife is alive, the
Beneficiary(ies) in terms
of the clause below, as
capital Beneficiary(ies),
will have no access to
the capital of this Trust
Failing the survival
of my Wife, the
income and capital
Beneficiary(ies) are to
be as follows:
• 100% to my Daughter,
Agatha Cooper, born
2013
I appoint as Trustee(s)
of this Trust those
nominated in the
relevant clause hereafter.
My Trustee(s) shall
administer this Trust in
terms of the relevant
clause hereafter
CHILDREN’S TRUST(S)
I direct that any benefit received in terms of this my Will shall be subject to the proviso that the respective Beneficiary(ies) has/have attained
the age of twenty‐five (25) years at the time of my death. Should the respective Beneficiary(ies) not have attained the age of twenty‐five
(25) years at the date of my death, then I direct that such benefit shall be held in Trust by my Trustee(s) who shall, in their capacity as such,
administer such benefit in terms of the provisions hereof and for the benefit of the Beneficiary(ies), as follows
If any Beneficiary is a
minor, my Trustee(s)
shall not be obliged
to pay any income
or capital, including
capital gains thereon or
accruals thereto, into
the Guardian’s Fund,
but my Trustee(s) may
retain such amounts
and deal with them as
part of the Trust until
the said Beneficiary
attains the age of
twenty–five (25) years.
To deliver to the major
Beneficiary(ies) or to
the Guardian(s) of the
Beneficiary(ies), on such
Beneficiary’s(ies’) behalf,
such movable assets as
my Trustee(s) consider
to be unsuitable for
retention in the Trust(s)
and I direct that the said
Guardian(s) shall not
be required to furnish
security.
To pay to the Guardian(s)
of the Beneficiary(ies)
or apply on behalf of
the Beneficiary(ies) such
portions of the income
and of the capital,
which will include
capital gains thereon
or accruals thereto,
as my Trustee(s) may
deem necessary for the
maintenance, education
and/or other benefit
of the Beneficiary(ies)
until he or she attains
the age of twenty–five
(25) years. My Trustee(s)
are granted the utmost
discretion to consider
the liabilities of the
Beneficiary(ies) and
provide for same out of
the Trust capital and/or
income
To capitalise all surplus
income from time to
time. The Trust(s) may
terminate upon the last
or youngest Beneficiary
attaining the age of
twenty–five (25) years
respectively, whereupon
the Beneficiary(ies) shall
receive the capital or
balance thereof, which
will include capital gains
thereon or accruals
thereto, and any
undistributed income.
Notwithstanding
any clauses herein
contained, the Trust(s)
may be terminated on a
date determined by the
Trustee(s) in his/her/
their sole discretion,
which date should
be upon the last or
youngest Beneficiary
attaining the age of
twenty–five (25) years.
JOHN COOPER PROVIDER TRUST
The sole income and capital Beneficiary of
the Trust will be my Son, John Cooper, for
the duration of his lifetime, and only after
such date, my Child(ren) as follows:
• 100% to my Daughter, Agatha Cooper,
born 2013
I appoint as Trustee(s) of this Trust those
nominated in the clause hereafter
My Trustee(s) shall administer this Trust in
terms of the clause hereafter
TRUST(S) TO BE CREATED IN TERMS OF MY WILL
My Trustee(s) will be entitled to undertake any valid activities necessary for the control, upkeep and enhancement of the Trust Assets as fully and
completely as if I were present and acted myself
Without in any way derogating from the generality of the powers granted to my Trustee(s) in the previous paragraph, my Trustee(s) will be
entitled to retain or sell any or all of the assets awarded to my Trustee(s) whether by public auction, private treaty or public tender as they may
decide, with the view to distributing Trust Assets to the Beneficiary(ies).
My Trustee(s) will be entitled to
Retain any assets in the Trust(s) until such sale in the case of the Beneficiary(ies) not being interested in transferring the assets into
their names;
Let or rent fixed property;
Encumber any assets of the Trust(s) if deemed necessary for the upkeep of Trust Assets;
Invest and re–invest monies with financial institutions and/or in bonds over fixed property or in other approved securities
Utilise any part of the income and, if necessary, capital which will include capital gains thereon or accruals thereto, of the Trust(s)
towards the payment of administration costs, taxes, insurance, necessary improvements and upkeep of Trust Assets
Administer the inheritance of each Beneficiary in a separate Trust.
I place on record that all proceeds, where my minor Child(ren) are the Beneficiary(ies) for any Retirement Annuity Fund, Pension Fund, Provident
Fund or Approved Group Life, that such proceeds are payable to the specified Testamentary Trust(s) to be established in terms of my Will
CLARIFICATION/JUSTIFICATION OF TRUST CLAUSES
AMY COOPER WIDOW’S TRUST
The Spouse is the Income Beneficiary of the Trust, however the Capital Beneficiary(ies) would be someone else. A feature of this Trust is that the Spouse will continue to benefit from the income generated by the assets, yet the assets are bequeathed to the designated Beneficiary(ies). This could be put in place, for example, when someone would like their assets to go to their Children from a first marriage, yet they want to ensure the provision for their Spouse from a subsequent marriage.
CHILDREN’S TRUST(S)
These clauses provide for the eventuality that if any of the capital Beneficiaries are minor Children, who may not directly receive an inheritance, that their inheritances are “placed in safekeeping” until they become of age or the age as specified in the Will.
Until such time, the inheritances are placed in Trust, under the supervision and management of the Trustees – who work to ensure that the Beneficiaries’ inheritances are well looked after and managed. In this scenario, the Beneficiaries of the Trust are both income and capital Beneficiaries.
A Children’s Trust is created upon death, most often for the benefit of minors who are legally unable to manage their own financial affairs.
This structure prevents the inheritance from being transferred into the Guardian’s Fund. The Trust receives the due inheritances and the Trustee manages and distributes these assets on behalf of the Children in order to meet their financial needs until the chosen termination age of the Trust.
The Trustee is liable for any loss due to negligence or fraud and is responsible for the proper “keeping” of the Trust and its assets, including financial statements, tax returns, upkeep of assets and operation of bank accounts.
Capital Legacy will create separate Trusts if one Beneficiary is more likely to use the funds faster than other Beneficiaries. This is to ensure that the funds are utilised fairly and equally according to the wishes of the Testator/ Testatrix.
JOHN COOPER PROVIDER TRUST
This Trust option is created to provide for Beneficiaries who have special needs and cannot manage their own finances. This Trust structure can also be used to manage the inheritance of someone who does not have special needs yet is unable to responsibly manage their finances. However, the latter scenario does not elicit tax exemptions as the former does.The Beneficiary of this Trust structure is both the income and capital Beneficiary.
TRUST(S) TO BE CREATED IN TERMS OF MY WILL
These clauses provide for the rights, tasks, duties as well as limitations of the Trustees with regards to managing and maintaining the Trust Assets
Proviso – with the condition that …
Furnish Security: The Master of the High Court
sometimes requires private Executors to furnish
security/cash to the value of the Estate.
THE DUTIES OF A TRUSTEE
Create a Trust
Generate annual financial statements
Manage tax affairs
Minimum of one (1) meeting per annum with Beneficiary(ies) and Guardian(s) to budget and consider expenses for the year (school/clothing/housing/food)
Distribute expenses: e.g. school fees
Investment of Funds
Upkeep of Fixed assets
Management of Assets
Reassess the investment allocation at age 18
After 18 years of age the Beneficiary(ies) become(s)
Trustee(s) until Termination Age
Distribute capital funds at Termination Age
INHERITANCE EXCLUSIONS
I direct that any benefit from my Estate in terms of this Will to which any person may become entitled, shall be excluded from any joint Estate
or community of profit or loss and shall be free from any marital power which any Spouse might otherwise have or acquire by virtue of any
marriage to such Beneficiary(ies). Furthermore, any benefit from my Estate shall be free from and not form part of any Estate that is subject
to an accrual system, whether by virtue of the Matrimonial Property Act (Act 88 of 1984) or otherwise, it being my intention that any benefit
that devolves hereunder shall be the sole and exclusive property of the appointed Beneficiary(ies).
CLARIFICATION/JUSTIFICATION OF INHERITANCE EXCLUSIONS CLAUSE
A Beneficiary’s inheritance will not form part of a marriage or joint Estate. It is the sole and exclusive property of the Beneficiary(ies)
regardless of their marriage type/classification.
APPOINTMENT OF GUARDIANS
Failing a natural Guardian, I nominate and appoint my Financial Advisor, Raj Koothrappali, and Jane Koothrappali, to be the Guardian(s) of my
minor Child(ren). I direct that the said Guardian(s) shall not be required to furnish security in that capacity to the Master of the High Court. If
it should become necessary for a minor Child to take up residence with their Guardian(s), I direct that the cost of travel for that Child, as well
as that of any person who my Executor(s) may authorise to accompany them, shall be borne by my Estate.
Failing my Financial Advisor, Raj Koothrappali, and Jane Koothrappali, I nominate my Father, John Mark.
APPOINTMENT OF GUARDIANS
The clause is worded “Failing a natural Guardian…” to address any incorrect assumptions. However, even if you were to remove that wording, the remaining biological parent will still be considered a Guardian. If this is not the wish of the Client, the Client would need to obtain a court order while they are alive to change these circumstances.
A Guardian is the person nominated as the appointed caregiver of Children in the absence of a natural Guardian upon the Client’s death (i.e. if both biological parents have passed away). Guardian nominations are wishes and are not legally binding, until the Guardian accepts the nomination. It is often the most difficult decision Clients have to make.
The Guardian does not get any money, nor does he/she control any money. The Guardian does, however, make requests to theTrustee(s) for funds, directly or indirectly, on behalf of the Children while the Children are under 18 years of age
JOINT ASSETS
I wish my Beneficiaries to agree amongst themselves as to the division between them of any assets left to them jointly. My Executor(s) need not be involved in this decision, and a receipt signed by all the Beneficiaries will be given to the Executor(s). My Beneficiaries are authorised, at their own discretion, to establish Private Company and/or Inter Vivos Trust in order to retain a joint asset and I further direct that my Executor(s) are to transfer the joint assets to the Private Company and/or Inter Vivos Trust established by my Beneficiaries. All costs in relation to the retention of the joint assets shall be borne by my Estate.
JOINT ASSETS
Should any Beneficiaries receive a joint asset such as a house, they should accept it and after distribution of assets or transfer into their names they can decide what they would like to do with the asset. Should they argue about the joint asset before the transfer into their names they will hold up the administration process of the Estate.
For example, should an asset which cannot be owned by two persons be bequeathed as part of the residue of the Estate, the Beneficiaries must enter into a redistribution agreement. A redistribution agreement is when the Beneficiaries decide which assets they will inherit provided that each Beneficiary receives an equal portion.
COLLATION
The principle of collatio will not apply to my Estate. The Executor(s) will not take into account any benefits that I have given to any of my Beneficiaries when I was alive, when distributing my assets in terms of my Will. The provisions of this clause will not apply to any loan made by me to any of my Beneficiaries when I was alive.
CLARIFICATION/JUSTIFICATION OF COLLATION CLAUSE
Gifts received from the Testator/Testatrix during his/her lifetime will be excluded from the Estate, therefore inheritances will be
calculated according to the assets in the Estate on the date of death
Should the Testator/ix leave his/her Estate in equal shares to their Children, but he/she had bought a car for one of the Children beforehe/she passed away, we as Executors will not consider the car value as part of the Child’s share of the Estate.
APPOINTMENT OF EXECUTOR(S) AND TRUSTEE(S)
I nominate and appoint Capital Legacy Board of Executors and Trustees (Pty) Ltd to be Executor of my Estate. I nominate and appoint Capital Legacy Board of Executors and Trustees (Pty) Ltd, together with Bernadette Hofstadter, my Friend, to be Trustee(s) of the Trust(s) to be created herein.
CLARIFICATION/JUSTIFICATION OF APPOINTMENT OF EXECUTOR(S) AND TRUSTEE(S) CLAUSE
When considering nominations of Executors, always keep in mind that you require a person who has the right amount of skill and knowledge to do the administration. If the nominated appointment doesn’t have the correct skills or knowledge, the Master of the High Court may step in and nominate someone to assist through power of attorney.
Executor: The person appointed by the Master of the
High Court to administer the Testator/Testatrix’s Estate.
Trustee – The person who controls money or property
that has been put in a Trust.
POWERS OF MY EXECUTOR(S) AND TRUSTEE(S)
I direct that my said Executor(s) and Trustee(s), or any Executor(s) as appointed by the Master of the High Court, and Trustee(s):
Shall not be required to furnish security;
Shall be entitled to take into Trust and to
administer, in accordance with the terms of
this my Will, all such other assets or property
as the Trust(s) may from time to time receive
or acquire from any source whatsoever;
Shall have the power of assumption
Shall be entitled to receive the following fees, subject to the
provisions of my Legacy Protection Plan, where applicable:
- as Executor(s) – the fees charged in terms of its official tariff of fees in force from time to time, subject to the tariff fees of office as fixed by Government Regulation;
- as Trustee(s) – the fees charged in terms of its official tariff of fees in force from time to time;
- all other related fees necessary to ensure fulfilment of their respective obligations, for example auctioneer and valuation fees.
Shall have the discretion not to form a Trust in terms of clausesix (6) above. In the event of my Executor exercising his/her/ their discretion to not form the Trust, then I direct that should any Beneficiary of this Will be under the age of eighteen (18) years old when he/she becomes entitled to his/her inheritance, the inheritance of such Beneficiary will not vest in him/her and will not be paid into the Guardian’s Fund but will be transferred to his/her legal Guardian(s) on a Beneficiary’s behalf for the benefit, education and general well-being, until the Beneficiary attains the age of eighteen (18) years old on which date the balance thereof shall be transferred to the Beneficiary. I direct that the Guardian(s) shall not be required to furnish security.
POWERS OF MY EXECUTOR(S) AND TRUSTEE(S)
Shall not furnish security – This refers to an amount equal to the Estate value that the Master of the High Court would normally request for proper fulfilment of Executor duties, if a private individual is appointed as Executor. We would not be asked for security.
Shall be entitled to take into Trust – Create a Trust for assets to be looked after.
Shall have the power of assumption – The Executor has the power to transfer his or her role and duties to another Executor, should he or she be unable to fulfil their responsibilities.
Shall be entitled to receive the following fees – Executor, Trustee and Conveyance Fees as fixed by Government Regulations.