WILLS & TESTAMENTS
What happens if you die without a will in South Africa?
If you die without a will in South Africa, your estate will be distributed according to the Intestate Succession Act 81 of 1987. This means that your assets may not go to the people you intended to benefit from them1. However, your estate will not go to the State unless you have no relatives at all.
What is a will and testament?
A will and testament is a legal document that communicates a person’s final wishes pertaining to their assets and wealth after their death. It expresses how their property is to be distributed and who is to manage it. It may also designate who will care for their children if they have any. A will and testament is part of a comprehensive estate plan.
The difference between will and testament?
The terms “will” and “testament” are often used interchangeably, and there is no significant difference between them. However, there are some distinctions:
Will: Describes your final wishes for your property and minor children. It takes effect after your death and can be revoked or changed while you are alive.
Testament: Historically thought to apply only to personal property, but now used interchangeably with “will”.
What makes a will valid?
Any person aged 16 or over can create a Will.
All Wills must be in writing and can be handwritten, typed or printed. For the Will to be legal and valid, it needs to meet the following conditions, according to the Wills Act of 1953:
- You must be mentally capable of “appreciating the nature and effect” of your action
- You, the testator, needs to sign the end of the Will
- If the document consists of more than one page, each page must be signed
- Two competent witnesses need to be present when you sign
- The witnesses must also sign the document in your presence and each other’s presence
The witnesses cannot be someone who will inherit from the estate
Making a mark on your Will is considered as valid as a signature. It can also be signed using a thumbprint or a mark, provided that it is attested by a Commissioner of Oaths. It should be dated on the last page.
However, if you are unable to sign or make a mark, because of a physical disability, another person can sign for you in your presence and under your direction.
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What can make a Will invalid?
Numerous variables can influence whether your Will is deemed valid or not.
DIY Wills, in particular, are more likely to be declared invalid, according to legal experts. If you’re downloading a template for a Will from the Internet, for example, you will have to ensure that it is in line with South African law.
Here are a few factors that can make your Will invalid:
- Ensure that the document has been signed by you, the testator: The testator/testatrix is the person whose wishes are contained in the Will. Your Will must be signed on each page and at the end of the document to ensure its legality and validity.
- Don’t select witnesses who are also listed as beneficiaries: Anyone who writes a Will or who witnesses a Will or helps you sign a Will is disqualified from receiving any benefit from that Will, including the spouse of the deceased. So, it is important to select witnesses who are not beneficiaries or potential beneficiaries. By the same token, anyone who witnesses a Will can’t be appointed as your estate executor.
- Don’t make changes to your Will without having those changes witnessed: You may, from time to time, want to make certain amendments to your Will by deleting, adding or amending words or phrases. However, a more careful approach would be to either draft an appendix to your Will or to prepare a fresh Will. If amendments are made, stringent formalities must be complied with to ensure that these alterations are valid and will be given effect – such as having all amendments or changes witnessed. It’s reported that numerous Wills are declared invalid because they lack compliance with legal formalities.
| Checklist | Yes/No |
|---|---|
| 1. The testator is 16 or older. | |
| 2. The will is in writing. | |
| 3. The testator has signed each page of the testament in the presence of two witnesses who signed the last page. | |
| 4. The witnesses are aged 14 or older. | |
| 5. The witnesses are not beneficiaries in terms of the will, nor are they married to beneficiaries. | |
| 6. All assets bequeathed in terms of the will are listed, as are the names and details of heirs. | |
| 7. If any heir is a minor, the will should indicate what happens to that minor’s inheritance. Will it be paid into a trust, for example? | |
| 8. If the testator is the sole guardian of any minor children, indicate who should be appointed as guardian after the stetator’s death. | |
| 9. The testator must appoint an executor; someone who will be able to execute the complicated process of administering an estate. | |
| 10. Nominate more than one person as executor, in case the nominated executor is able or willing. | |
| 11. It is the default position that executors are required to provide the Master of the High Court with security to the value of the estate before taking up their duties. If the testator would like the executor to be exempt from providing security, this exemption must be recorded in the testament. | |
| 12. Indicate the executor’s fee, which is normally 3.5% of the value of the estate’s assests. A lesser fee may be negotiated with the executor and indicated in the will. |
* Compiled by Caxton Local News from info supplied by the South African Department of Justice and Legal Aid South Africa