No one likes to think about their own mortality, but the reality is that death is an inevitable part of life. By having a valid will in place, you can ensure that your assets are distributed according to your wishes and that your loved ones are provided for after you’re gone. Although it is not a legal requirement to have a will in South Africa, it is highly recommended. If you die without a will (also known as dying intestate), your assets will be distributed according to the rules of intestate succession. This means that your assets will be distributed in a predetermined way, which may not be in line with your wishes. Creating a will is the only way to ensure that your assets are distributed according to your wishes after you pass away. In this blog post, we’ll explore the reasons why having a will is so important, as well as the legal requirements for creating a valid will.
Why is having a will important?
There are several reasons why having a will is important in South Africa. Perhaps the most important reason is that it allows you to dictate how your assets are distributed after you die. If you don’t have a will, your assets will be distributed according to the rules of intestate succession, which may not align with your wishes. For example, if you’re married with children, and you die without a will, your assets will be split between your spouse and children in a predetermined way, which may not be the way you would have chosen. Having a will can also help prevent disputes among family members. If you have a clear and legally valid will, there’s less room for interpretation or disagreement about your wishes. This can help prevent family members from fighting over your assets, which can be both emotionally and financially draining.
It’s also important to note that there are certain assets that cannot be disposed of in a will, such as retirement funds and life insurance policies. These assets are typically governed by their own rules, so it’s important to seek legal advice to ensure that your wishes are carried out.
Legal requirements for creating a will in South Africa
In order for a will to be legally valid in South Africa, it must meet certain requirements:
- The person making the will (testator) must be at least 16 years old and of sound mind.
- The will must be in writing and signed by the testator or by someone else at the testator’s direction and in their presence.
- The testator must sign the will at the end of the document or, if this is not possible, in the margin near the end of the document.
- The testator must sign the will in the presence of at least two witnesses, who must also sign the will in the presence of the testator and each other.
- The witnesses must be at least 14 years old and must not be beneficiaries or heirs in the will.
- The will should include a revocation clause, which states that any previous wills or codicils are revoked.
- The will should clearly identify the testator’s assets and beneficiaries, as well as any instructions for the distribution of assets and the appointment of an executor.
- The will should be dated to establish the time of its execution.
It’s important to note that the requirements for a valid will in South Africa are governed by the Wills Act, 7 of 1953, and failure to comply with these requirements may result in the will being declared invalid. It’s always a good idea to seek legal advice when creating a will to ensure that it meets all of the legal requirements and accurately reflects your wishes.
What makes a will invalid?
There are several reasons why a will may be declared invalid in South Africa. Here are some common factors that could render a will invalid:
- Lack of capacity – if the testator lacked the mental capacity to understand the nature and consequences of their actions when creating the will.
- Improper execution – if the will was not signed in the presence of two witnesses or if the witnesses did not sign the will in the presence of the testator and each other.
- Undue influence -if the testator was coerced or influenced into creating the will.
- Fraud or forgery – If the will was fraudulently created or forged
- Ambiguity or uncertainty – if the language in the will is unclear or ambiguous, it may be difficult to determine the testator’s intentions.
- Revocation – if the testator revokes the will by creating a new will or codicil, the previous will is no longer valid.
- Contrary to public policy – if the provisions of the will are contrary to public policy, they may be deemed invalid.
It’s important to note that each case is unique, and whether a will is valid or not will depend on the specific circumstances surrounding the creation of the will. If you have concerns about the validity of a will, it’s important to seek legal advice from a qualified professional.
Will Drafting and Estate Planning services
Estate planning is the most important aspect of structuring an individual’s affairs. We advise clients on the best solutions in order to protect their assets and ensure that estate duty is kept at a minimum when drafting their last Will and Testament. Our firm assists clients in the creation of trusts, whether it be inter vivos or testamentary, and also provides administrative guidance and advice.
Our litigation department can also assist in the interpretation of Wills and other legal issues that arise after a person’s death, such as disputes regarding the validity of a Will.
Our Estates & Trusts services include:
- Advice on estate planning
- Registration and administration of testamentary and inter vivos trusts
- Preparation of wills and deeds of trust
- Winding up of deceased estates
- Administration of clients’ personal affairs
- Preparation of antenuptial contracts
- Curatorship appointments