In South Africa, a person can leave his / her assets to whoever he /she likes. This is called “freedom of testation“.
For your will to be valid it will need to be drawn up in the correct way to comply with the formalities provided for in our law.
The following are some of the more important requirements of the Wills Act 7 of 1953:
Anyone 16 years or older can make a will, provided that the person is mentally capable of appreciating the effect of what he or she is doing. The will must be in writing and must be signed by the testator or testatrix or by both in case of a joint will.
The will must be signed in the presence of two or more competent witnesses, who must be 14 years or older. The witnesses must sign the will in the presence of the testator or testatrix and of each other. A beneficiary, trustees and Executors or their spouse can’t be witnesses to a will from which they benefit.
Each page of the will must be signed by the testator/testatrix and witnesses.
Although it is not necessary to date a will for it to be valid, dating it is important to determine if it is the last will.
Oral wills and family arrangements are not recognised in our law and are not enforceable and can merely be used as guideline regarding the testator’s wishes.
In the case of a handwritten will in full or in part, it is required to be in the testator’s own handwriting. In the event that an heir or nominated executor writes the will, it will trigger intestacy and will result in an heir or executor being disqualified form inheriting or being appointed. In a case where an heir is disqualified from inheriting as a result of handwriting the testator’s will, such a beneficiary will only be able to inherit as much as they would have been entitled to in terms of intestate succession.
Must I amend my will after divorce?
If a person dies within 3 months after his or her marriage was dissolved by divorce and the deceased drafted a will before the marriage was dissolved, the ex-spouse will not inherit unless it is clear that the deceased intended to allocate a benefit to his/her ex-spouse.
What is a codicil?
A codicil is an annexure to an existing will, which is made to supplement or amend an existing will. The codicil must comply with the same requirements for a valid will.
What does an Executor do and who can I appoint as Executor?
The Executor is the person who’ll make sure that your assets are divided to your wishes according to your will. The Executor also evaluates the estate and its debts. The Executor can be your spouse, child, parent, family friend or an attorney.
The person or company so nominated will have to apply to the Master of the High Court after your death to be formally appointed by the Master to act in this capacity. If the person you choose is not a professional estate administrator then the Master will insist that the person concerned utilise the services of a professional estate administrator to attend to the work which needs to be done.
Where do I keep my will?
It is important that your original will is kept safe with a responsible person or institution, as a copy or certified copy of a will is not considered a valid will, which will result in your estate being wound up according to intestate succession.
What happens if I die without a will?
If you die without leaving a valid will, the assets in your estate will be divided according to the provisions set out by law in terms of the Intestate Succession Act. These provisions are generally fair and ensure your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationship, which may not be what you want.
For more information on the drafting of Wills, please contact our Elke Herbst at email@example.com or call our offices on 021 441 9800.
Elke Herbst | Associate
Areas of Expertise: Wills | Deceased Estates | Curatorships
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)