Wills Act South Africa

Drafting a Will

Composing a legally binding will

Drafting your will is a crucial process. If it’s not binding and enforceable, it will be considered invalid. A valid will is necessary to ensure that your wishes are carried out after your death.

It’s important to make sure that the beneficiaries in your will are aligned with your requests. To do this, you need to revise your will every year. Your original will and testament should be stored in a safe place with your lawyer, who will follow up with you annually to find out if the document needs to be updated.

If you don’t have a valid will when you die, all of your assets will be transferred to your beneficiaries under the law of intestate succession. All of your wealth and belongings will be dispersed according to the Intestate Succession Act 81 of 1987.

When you draft a will, there are formalities and requirements in place to prevent anyone from committing fraud and stealing your estate. If your will does not adhere to these guidelines, it will be invalid.

Importance of Wills and Estates

The governing statute is the Wills Act 7 of 1953, which came into operation on 1 January 1954 and has been amended several times since, most substantially by the Law of Succession Amendment Act 43 of 1992.

The Wills Act gives us the right to determine who will receive our belongings after we die. We call this the privilege of freedom of testation. It is critical to consult an expert attorney to draft your will while you are still of sound mind.

Thinking about our mortality and planning accordingly may sound morbid and pessimistic, but it’s important to plan accordingly to ensure that your wishes are respected. If you don’t plan ahead, the chances of family arguments when you pass away will be much higher.

There are several factors to take into account when drawing up a will, namely, creating a trust for minors, Donations Tax, Estate Duty, Power of Attorney in cases of deteriorating mental health and more.

Who may make a will

Section 4 of the Wills Act provides that every person of the age of sixteen years or more may make a will, unless at the time of making it they are mentally incapable of appreciating the nature and effect of their act. Importantly, the burden of proving that incapacity rests on the person alleging it — the starting assumption is that the testator had capacity.

The formalities under section 2(1)(a)

Section 2(1)(a) sets out the execution formalities that a will must satisfy. For any will executed on or after 1 January 1954, the will is not valid unless:

it is signed at the end by the testator, or by another person in the testator’s presence and at the testator’s direction;
that signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time;
those witnesses attest and sign the will in the presence of the testator and of each other; and
if the will runs to more than one page, every page other than the last is also signed by the testator, anywhere on the page.

A competent witness is defined in section 1 as a person of fourteen years or older who, at the time of witnessing, is not incompetent to give evidence in a court of law.

Where the testator signs by making a mark, or where someone else signs on the testator’s behalf, a further step is required: a commissioner of oaths must certify that they have satisfied themselves as to the identity of the testator and that the document is the testator’s will, and must sign each page. The certificate must be made as soon as possible after the will is signed, and the Act prescribes a form for it in Schedule 1.

The same formalities apply, with the necessary changes, to any amendment made to a will after it has been executed. An amendment appearing on a will is presumed, unless the contrary is proved, to have been made after execution — so an unsigned, unwitnessed alteration is likely to fail.

The trap that catches the most people: section 4A

Section 4A is the provision that most often causes distress in practice, and it is widely misunderstood. Any person who attests and signs the will as a witness, who signs the will on the testator’s behalf, or who writes out the will or any part of it in their own handwriting — together with that person’s spouse at the time of execution — is disqualified from receiving any benefit under that will. Nominating someone as executor, trustee or guardian counts as a benefit for this purpose.

In other words, asking a beneficiary or a beneficiary’s spouse to witness your will can defeat the very bequest you intended for them. The Act does allow relief in three situations: a court may declare the person competent to receive the benefit if satisfied there was no fraud or undue influence; a person who would have inherited on intestacy is not disqualified, but only up to the value of their intestate share; and a witness is not disqualified if the will was also attested by at least two other competent witnesses who take no benefit.

Section 2(3): Court recognition of informal wills

An important safeguard under the Wills Act is section 2(3), introduced by the Law of Succession Amendment Act 43 of 1992. If a court is satisfied that a document drafted or executed by a person who has since died was intended to be that person’s will, the court shall order the Master to accept it for the purposes of the Administration of Estates Act 66 of 1965, even though it does not comply with all the formalities in section 2(1). The wording is peremptory: once the court is satisfied as to the testator’s intention, it must make the order.

Section 2(3) has been relied on in numerous South African court decisions and remains a vital rescue provision for testators whose wills contain technical defects. It should not, however, be treated as a substitute for proper execution — a section 2(3) application is a High Court matter, and the cost and delay of bringing one falls on the estate.

What divorce does to your will

Section 2B contains a rule that catches many people out. If you die within three months of your marriage being dissolved by divorce or annulment, and you executed your will before the dissolution, the will is implemented as though your former spouse had died before the divorce — so they take nothing. This is unless the will itself shows you intended to benefit your former spouse regardless.

The three-month window is a grace period, not a permanent solution. It gives a newly divorced person time to put a fresh will in place. If you do not use it and die after those three months, the old will stands as written and your former spouse may well inherit. Reviewing your will is one of the first things to do after a divorce is finalised.

Revoking a will

Under section 2A a court may declare a will, or part of it, revoked where the testator made a written indication on the will, performed some other act apparent from the face of the will, or drafted another document, intending by that to revoke it. As with section 2(3), this is a court process — the cleaner route is always to execute a new will that expressly revokes all previous ones.

That’s a brief explanation of the Wills Act South Africa. We hope this gave you a solid understanding of this important South African legislation.

Wills Act South Africa

Drafting a Will

Composing a legally binding will