High profile South African president and activist, Nelson Mandela, died in 2013 and despite leaving behind a detailed will, a bitter court battle erupted among members of his family.
Mandela’s first wife Winnie, whom he divorced in 1996, has contested the will upon discovering that she had been left out of his $4.3 million estate. Mandela made provision for his current wife, children, grandchildren and great-grandchildren and left small bequests to educational institutions. In his will, Mandela made his wishes clear for his ancestral home, his Qunu homestead, to be used to forever reunite his family.
However Winnie has contested the will, claiming that the Qunu homestead belongs to her. Her lawyers state that she is not attacking the will, but asserting her traditional rights. Under traditional African law, she would be entitled to the homestead despite being divorced from Mandela.
It’s not the first time there have been legal proceedings over the Qunu homestead. Fifteen members of Mandela’s family went to court in 2013 to have family bones exhumed and returned to the Qunu home, where Mandela grew up. Critics allege that the family was simply trying to gain control over future tourist revenue for the site.
In 2016, Winnie lost her court bid to claim ownership of his rural home, in a ruling welcomed by his family after a bitter court battle. “The family is grateful that this saga has now come to a close and trusts that Winnie will make peace with the judgment,” the Mandela family said in a statement. “It is deeply regrettable that this challenge to his final wishes should have come from someone of her stature and proximity to the family.”
It’s true that even the clearest and most detailed will can be contested if those left behind feel that it’s unfair.
Tips for Making a Will
Making a will does not need to be a complex issue. Instead, if the will is set out correctly, a court battle can be avoided. Firstly, when making a will, ensure you choose the right legal advice. Even if you think your circumstances are simple, a specialist can make sure that your wishes are planned and followed. Here, at Estate Battles, we wish to help anyone looking for assistance in estate planning.
Secondly, always appoint an trustworthy executor. They must be someone who understands your intent and wishes to follow your directions. You may wish for this to be your partner, however you should be aware that it’s an important role. Executors of an estate have an obligation to engage in the due administration of the estate. Enormous obligations are cast upon an executor to gather in the estate, pay all testamentary debts and expenses and to distribute the estate in a correct and legal way.You can choose to have more than one sole executor if you believe it is required.
If you have decide to use a testamentary discretionary trust, you should also appoint trustworthy trustees to ensure the correct terms are followed. The trustee is the person (or persons up to four) you designate to be in charge of the trust. The trustee can be the person whom you wish to benefit under your will, or even one of the persons for whom the trust is established. The trustee can also be a company.
If you have a child under 18, it is also very important to name guardians. You can discuss this over with family members and even your children if you believe them to be mature enough. This is a highly important decision and should be thought over.
Avoiding A Court Battle
It can never be guaranteed that your will and estate planning will entirely avoid an estate battle, however there are ways that you can lower the chances. Firstly, don’t pass away without a will. You should have a will and review it every few years or when a significant life event occurs, such as a marriage, divorce or birth of a child. Whatever the case, a will should never be treated as a ‘set-and-forget’ document.
Another important element is addressing within your will ‘what-ifs’. It’s important to make arrangements for all the what-if scenarios you can reasonably imagine. This might include the death of beneficiaries, an addition to your family or the divorce of you or a family member.
You should also avoid excluding immediate family members from your will. You must take into account your beneficiaries and if you are considering cutting someone out, go over this very carefully with a specialist in wills and estates. It is always a good idea to communicate the contents of your will with your family, because often a ‘surprise’ in a will leads to a costly court battle.
Creating an estate plan can get confusing, but at Estate Battles, we are always here to help. Contact us today – we offer a FREE, 10-minute phone consultation.