Discretionary Living Trusts A legacy for generations

Written by Trust Specialist, Mervin Messias, it is the culmination of knowledge and expertise that has been acquired over many years’ study and practice of Trust law.

The author recommends the use of Trusts as part of estate planning because they provide solutions to many potentially complicated problems related to asset protection, succession planning, and disability protection. Many little-known benefits of Trusts are revealed to help protect your hard-earned wealth for generations to come. A Trust circumvents the whole process of winding up an estate, together with its potential delays, hassles and frustration.

In fact, a Trust deserves pride of place in any estate plan. It means business as usual, even after death, with no executor, executor’s fees or estate duty.

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    It is baffling that so many people put off preparing a Will. A Will is probably the most sacrosanct and powerful document you can prepare in your lifetime. Correctly drafted, it entrenches your right to distribute your property as you see fit, it dispenses with unwelcome interference and provides the legal muscle to uphold your decision after you have died.

    South African law provides for freedom of testation, that is, the freedom to choose your heirs. A Will is a formal declaration of your intentions regarding the disposal of your property when you die. How you choose to dispose of your property is your business. It is not only an expression of your gratitude and responsibility to the people you care about, who have added value to your life and helped you live it well, it also determines how you intend to care and provide for them after you pass.

    Exercise your legal right to choose your heirs because without a Will, the law of intestate succession will apply. The law leaves no room for choice – truth be told, it could be the least deserving people!

    It is important to understand that a Will gives you (as Testator) the power to override how the law will distribute your assets if you die intestate. The law of intestate succession prioritises existing spouses, followed by surviving descendants, parents and siblings. What if you have no Will and:

    • No living relatives in the above distribution list? Your assets will be forfeited to the State.
    • Your marriage is fraught with hostility, divorce is on the cards, but a fatal cardiac arrest beats you to it? Your disagreeable spouse will inherit it all. (You can count on the fact that you will disapprove of someone in the queue!)
    • Your family is relying on you to make provision for them? They will be exposed to considerable emotional and financial hardship for an indeterminate period.


    Here is what you need to do. Find an attorney who specialises in Wills. There’s a very good reason why you should not be tempted to download a template off the website – the drafting of Wills is a highly specialised area of law. It must comply with the following Acts:

    •  Wills Act 7 of 1953,
    • Intestate Succession Act 81 of 1987,
    • Maintenance of Surviving Spouses Act 27 of 1990,
    • Matrimonial Property Act 88 of 1984,
    • Insolvency Act 24 of 1936,
    • Trust Property Control Act 57 of 1988,
    • Estate Duty Act 45 of 1955,
    • Administration of Estates Act 66 of 1965

    Will should include strategies for succession and tax planning and be so meticulously drafted that it leaves no room for ambiguity. Some of the ugliest disputes, family rifts and costly litigation stem from ambiguous Wills, shoddily drafted by an inept individual. Avoid being a victim of incompetent advice and setting a devastating trap for your heirs when you pass.

    Wills and Trusts often go hand in hand, it all depends on your objectives. Consult a Wills and Trusts specialist to ensure that your Will meets your objectives, and your loved ones are protected from potential economic ruin when you die.