statue

National Wills week

Publication September 2019

In South Africa, you don’t die without a will. You either die with one you signed or one the State wrote for you – the Intestate Succession Act. It’s preferable that you write your own will. You’ve spent your life accumulating your assets and building up your estate, so you should be the one to decide what happens to them once you’re gone, not the State. In your will you decide who gets what (your beneficiaries) and who will carry out your wishes (your executor), besides other details.

A will is one of the few agreements that must be in writing for it to be valid. It can be handwritten, typed or be a combination of both. Avoid handwriting a will where you can – not everyone has consistent handwriting and you leave the door open for the will to be challenged if the handwriting doesn’t look the same throughout the document.

You need to be 16 years or older and mentally able to appreciate what you are doing when you draw up your will and when you sign it. If there might be questions about your competence to draw up and sign a will, it’s a good idea to have an appropriate medical professional present to confirm that in giving of instructions and in signing the will, you are of sound mind. Have them produce an affidavit to this effect and attach it to your will. It will help prevent disputes at a later stage.

A will must be signed in the presence of two witnesses. Important points to note about signing a will:

  • Date your will. If you write more than one will in your lifetime (and you should as your life circumstances change) and don’t date them and destroy older versions, it’s going to be challenging (and costly) for your beneficiaries to prove to a court which will is your actual last will.
  • The witnesses must be 14 years or older and must not be a beneficiary (or married to a beneficiary) or your executor, trustee or a guardian. If any of these people witnesses you signing your will they cannot benefit from your will or be appointed an executor, trustee or guardian. It is wise to put a note identifying the witnesses with your will in case there’s a dispute.
  • You must sign in the presence of both witnesses who must sign as witnesses in your presence and each other’s presence. Witnesses don’t need to know what’s in your will. All they are doing, by signing as a witness, is confirming they witnessed you signing the document you called your will.
  • The will must be signed on each page (anywhere on the page) and at the end of the will. On the last page, sign immediately after the last provision of the will. If you leave a gap between the last provision and the signatures, you will invalidate your will.
  • If you cannot sign your will, you can make a mark on it in the presence of a commissioner of oaths as well as the witnesses or you can direct another person to sign your will for you, again in the presence of the commissioner and the witnesses. The commissioner needs to append a certificate to your will to validate these methods of you singing your will.

Do not hide your will or keep it a secret the fact that you have a will. Your will is needed immediately on your passing. If no one knows you have a will, no one will look for it and your estate will, at least initially until the will is found, be dealt with in terms of the Intestate Succession Act. If the will is found at a later stage, there will be an egg to unscramble to try honour your wishes as expressed in your will rather than follow the laws of intestate inheritance. So, keep your will safe and let at least one trusted someone know where to find it.

A will is a dynamic document. As your life circumstances change, review your will to see if it still meets your needs. Minor children need guardians. And their inheritance should be paid into a trust (which you can create in your will) otherwise it will be paid into the Guardian’s Fund (a fund administered by the Master of the High Court). If you get divorced, make any changes required to your will as soon as possible. If you die within three months of the divorce and your ex-spouse is listed as a beneficiary, your ex-spouse will be treated as if they had died before you and will be excluded from your will. Decide immediately who you want to inherit from you.

For more information, visit the Law Society of South Africa.



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