South Africa’s “greatest son”, Nelson Mandela, is a positive example for many things, but not estate planning. Apparently, Mandela executed a will in August of 2004. However, two subsequent amendments to the will refer to a will executed in October of 2004. The amendments suggest that the October 2004 will revoked the August 2004 will, which is a problem because the October 2004 will can’t be found. Whether the August 2004 will is held to be valid could mean the difference in some of Mandela’s children being recipients of the estate or not. Mandela, having been the most high-profile individual in South Africa for the last twenty years, has left an estate of $4.1 million and a lot of headache for his heirs.
The Mandela estate saga aptly illustrates two points about estate planning the deserve discussion. The first point has to do with privacy; the second point has to do with modifying wills.
First, wills provide no privacy. Once your will is probated in court, it is a public document. For many people, this is not really an issue. For example, for a married couple with no children, a will that simply leaves everything to the other spouse is probably not too sensitive of a document. For other people, especially public figures, a will can invite public intrigue that can be uncomfortable and embarrassing for your loved ones.
This is why many public figures during their lifetime place property in trust. Until a trust agreement becomes the subject of litigation, the agreement is a private document.
Second, I almost never recommend making piecemeal amendments to wills. Why invite the complication and potential for error, when you can simply destroy the old will and make a new one? In Arkansas, Ark. Code Ann. § 28-25-109(a) states that a will can be revoked in the following ways:
- By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
- By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator’s presence and by the testator’s direction.
As an estate planning lawyer, my preference is for certainty. I say just give it to me, and I’ll burn the darn thing.