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Legatus Trust outlines the core protections a valid will gives you and the consequences of not having one. A will is not a document. It is a tool of control. When you sign a valid will that is compliant with South African law, you are exercising power over events that will unfold after you can no longer manage them. Without a will, that power passes to the state. With one, it remains yours.
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What a will allows you to do
South African law grants testators broad freedom to direct their affairs. A valid will allows you to safeguard assets for your heirs. Without a will, intestacy law decides who inherits and in what proportions. A will lets you direct specific assets to specific people. You can leave the family home to your spouse and your business to your eldest child. You can provide for a dependent parent. You can exclude those you do not wish to benefit.
Johann van Vuuren, Estates Manager Inland of Legatus, explains: “Minor children cannot legally control inherited cash or movable assets. Without a will, these may go to the Guardian’s Fund. With a will, you can nominate trustees to manage those assets in trust, releasing funds for education, healthcare and living expenses as needed. You can specify whether you wish to be buried or cremated and outline the ceremony you prefer. This spares your family the burden of guessing your wishes during grief. If you wish to donate to medical science or for organ transplantation, your will can record that decision.” Van Vuuren says a will is also beneficial to protect family heirlooms. “Sentimental property, including jewellery, artwork and heirlooms, can be specifically bequeathed to named family members, helping to ensure that they remain in the family rather than being sold or lost.”
A clear will can make the executor’s work easier. The faster your estate is wound up, the lower the administrative costs may be and the sooner your heirs can receive their inheritance. van Vuuren explains you can also attach lawful conditions to inheritances. “For example, you might leave money to a grandchild on condition that it is held in trust until a certain age, or grant a spouse the right to use an asset for life, with the asset passing to your children after their death. Strategic will planning, such as providing for a spouse or using suitable trust structures, can reduce estate duty and capital gains tax within the law.”
What happens without a will
If you die without a valid will, the law decides how your estate will be divided. This is known as dying intestate and your estate will be distributed according to the Intestate Succession Act 81 of 1987. The Master of the High Court will appoint an executor to handle your estate. This may be a family member, but it could also be someone you would not have chosen yourself. Your assets will be divided among your spouse, children or other relatives according to fixed legal rules. You will have no control over who inherits specific assets. If a minor child inherits money, it may be paid into the Guardian’s Fund. A formal application will then be required whenever money is needed for the child’s care, education or other expenses.
An unmarried life partner may not automatically inherit from your estate. Without a valid will, they could be left with no legal claim to the assets you intended for them. Your family may also be left uncertain about your funeral wishes, sentimental possessions and the future of your business. This can lead to delays, disputes and additional costs.
Will validity under South African law
For a will to be valid and enforceable, it must comply with the Wills Act 7 of 1953.
The core requirements are:
• You must be at least 16 years old and mentally capable of understanding the consequences of your actions at the time of signing.
• You must sign the will at the end of the document. Each preceding page should also be signed.
• Two competent witnesses, each at least 14 years old, must be present at the same time while you sign. They must sign in your presence and in each other’s presence.
• A beneficiary under the will, or the spouse of a beneficiary, should not act as a witness. Doing so may affect that person’s right to inherit.
• A person nominated as executor, trustee or guardian should also avoid acting as a witness if they may receive a benefit under the will.
• Any deletions, additions or changes must be completed and signed in accordance with the legal requirements.
Compliance with these requirements is essential. A will that fails to meet them may be declared invalid or may require a court application before it can be accepted. This can be costly and time-consuming and may leave your family facing significant uncertainty.
Professional drafting is worth the investment
While basic wills can be drafted online, a valid will drafted by professionals helps ensure compliance, addresses your specific circumstances and includes protections you may not have considered. A valid will is the foundation of your estate plan. It costs far less to draft it properly now than for your family to manage the consequences of not having one.
In partnership with Legatus Trust, this article is presented as part of the Estate Matters series on Legal Notice Publishing.
For professional estate-planning advice and will-drafting services, contact Legatus Trust:
Johannesburg: +27 861 722 626
Cape Town: +27 21 914 4925
Email: info@legatus.co.za
