Legislation
The creation, interpretation, and execution of wills is covered in The Wills Act 7 of 1953. Introduced in 1953, this legislation has undergone various amendments, but its core principles have remained intact. The Act provides safeguards to protect the interests of both testators and beneficiaries, promoting fairness and clarity in the administration of estates.
Validity of a Will
Testator is the legal term for an individual who creates a will. The Act stipulates the following requirements for a Will to be valid:
- the testator must be over 16 years of age;
- the will must be in writing, either typed or handwritten (if handwritten, the person who writes the will cannot be a beneficiary);
- each page of the will, including the last page, must be signed by the testator, plus two witnesses (witnesses must be 14 years of age and cannot be a beneficiary of the will either).
It is also important for the testator and witnesses to sign in the presence of each other. If a testator for some reason cannot physically sign the will, a thumbprint can be used (but only in the presence of a Commissioner of Oaths).
Key considerations in your Will
When writing a will, you should consider many things before consulting an attorney to draft the document. These include:
- Assets and their values;
- Beneficiaries to receive all or portions of your assets;
- Appointing a professional executor or a reputable firm or trust company, rather than a family member;
- Guardianship of minors;
- Marital regime - If you're married in community of property, you only own 50% of the joint estate and can only bequeath 50% in your will;
- Tax considerations;
- Your preferences for medical decisions made on your behalf and end-of-life care;
- Current and future changes to family dynamics; and
- Any other digital assets.
Components of a Will
To ensure your will is comprehensive and legally sound, you’ll need to include the following key elements:
1. Personal Information
Start with your full legal name, ID number, and address to clearly identify yourself as the testator (the person creating the will).
2. Declaration of Testamentary Intent
Include a statement declaring that this document is your last will and testament, revoking all previous wills and codicils.
3. Appointment of an Executor
The executor is responsible for managing your estate and ensuring your instructions are carried out. Choose someone trustworthy and capable, such as a family member, close friend, or professional deceased estate administrator.
4. Beneficiaries
Clearly name the individuals or organizations (such as charities) who will inherit your assets. Specify the percentage or portion of your estate each beneficiary will receive.
5. Specific Bequests
Detail specific items or assets you wish to leave to particular beneficiaries, such as:
- Real estate properties;
- Vehicles;
- Bank accounts and investments;
- Jewellery, art, or collectibles;
- Sentimental belongings; and
- Be as specific as possible to avoid confusion or disputes.
6. Residual Estate
The residual estate includes all remaining assets after specific bequests, debts, and taxes have been settled. Indicate how this portion of your estate should be divided among your beneficiaries.
7. Appointment of Guardians
If you have minor children, appoint a guardian to care for them in the event of your death. Consider naming an alternate guardian in case your first choice is unable to serve.
8. Trust Provisions
If you wish to protect assets for minor children or dependents, include provisions to establish a testamentary trust. A trust ensures that assets are managed on behalf of beneficiaries until they reach a specified age or milestone.
9. Funeral and Burial Instructions
You can include your preferences for funeral arrangements, such as burial or cremation, and any specific rituals or locations you desire.
10. Debts and Liabilities
Acknowledge any debts or liabilities that need to be settled from your estate, such as loans, credit cards, or outstanding taxes.
11. Exclusions or Special Conditions
If there are individuals you wish to exclude from your will, explicitly state this to avoid potential disputes. Additionally, include any special conditions that must be met for beneficiaries to inherit.
12. Signature and Witnesses
To ensure your will is legally valid in South Africa, it must be signed by you in the presence of two competent witnesses, as per the paragraph above on validity.
What to avoid when drafting your Will
There’s a few common pitfalls when an executor starts the process of distribution of deceased estates. Some of these include:
- Ambiguity - Be clear and specific to prevent disputes among beneficiaries;
- Outdated Information - Review and update your will regularly to reflect major life changes, such as marriage, divorce, or the birth of children;
- DIY Errors - While DIY templates are available, consulting a deceased estate attorney ensures your will is legally compliant and comprehensive;
- Lack of knowledge – ensure you get the best advice on your rights and responsibilities, compliance with the law, tax implications and trust creation.
Drafting a will is a complex process, and professional assistance from attorneys ensures your wishes are accurately documented.
Consequences of not having a Will
In the absence of a will in the event of your death, you will:
- lose control over the distribution of your estate and affairs;
- risk your partner being excluded completely;
- be assigned a Government Guardian who could misuse assets;
- potentially set the scene for family disputes; and
- have a drawn out process (sometimes years) to finalisation when handled by the government.
Whether you’re drafting a new will or updating an old, it’s the perfect time to get started.
Get advice on your Will
Aucamp Incorporated is an experienced law firm with over 35 years’ experience in drafting wills, managing estates and offering personalised legal guidance in South Africa. For expert advice on a will, or to create or update your will, get in touch with one of our experienced attorneys