Have you ever wondered what would happen to your loved ones or your belongings after your passing? This article is aimed at enlightening our readers on the benefits of having a will and to ensure that certain requirements are met to declare their will valid and enforceable.

Why is it important to have a will?

It is advisable for every person to have a will regardless of what assets they may or may not possess. This way it prevents family disputes over assets and allows for your estate to be lodged and wound up without hesitation.

What is considered to be a valid will in South Africa?

According to South African Law, there are requirements that need to be met in order for a will to be declared valid and enforceable. A person must be over the age of 16 (sixteen) years when he/she drafts a will. The will must be in writing, it can however be typed out or hand written. Each page of the will must be signed by both the Testator and two competent witnesses.

Who is entitled to inherit from your will?

Any person whom you believe is worthy of your assets shall be stated in the will and will therefore become your heirs or beneficiaries. However, certain persons are prohibited from inheriting in terms of your will such as the two witnesses and any person whom fraudulently caused the will to be created on behalf of the testator.

What are the consequences of not having a will?

In terms of the Wills Act, if a person dies without a will their estate will devolve in terms of intestate succession. Meaning that regardless of what the testators wishes and intentions were during their lifetime, their assets will be distributed amongst their surviving spouse, and/or children in equal shares alternatively their parents in equal shares in terms of the intestate succession.

Important clauses that ought to be in your will.

A testator is free to dictate how their assets are to be distributed after their passing and may have free range to include and exclude any person from inheriting. However, there is two important aspects that a testator should be mindful of before finalising their will.

Firstly, the appointment of an executor or executrix of their estate. The testator must appoint a person to be the executor or executrix of their estate. The person so appointed by the testator is not excluded from inheriting in terms of the testator’s will. The duties of an executor are that, once the testator has passed on the executor will be tasked to wind up the estate of the testator and ensure that the assets are distributed in terms of the will and in line with the last wishes of the testator. The Executor will also be tasked to deal with the liabilities of the estate and inform the creditors of the testators passing and make right any liabilities the estate may have. It is therefore imperative to appoint a competent person whom you trust will carry out their duties as the Executor/Executrix with integrity and honesty. It should also be expressly stated in your will that the said executor/executrix be free of any security to the Master of the high court. In doing so you free them of obtaining a bond of security to the value of your assets. Further in terms of the Wills Act, the appointed executer/executrix will be entitled to 3.5% of the value of your estate. This percentage is fixed and regulated; it is for the work done by the executor to effectively ensure that your estate is wound up.

Secondly, a testator should include in their will a clause protecting their beneficiaries from any matrimonial regime they may enter into, existing or in the future. This is to ensure the Testator’s intention for the heir’s to be free from any matrimonial claims and also ensures that the testators wishes are protected by giving them peace of mind that the inheritance left to their nominated heir will be for that heir only.

Legalese of the Edition!

AMANUENSIS – An amanuensis is a person appointed to assist/sign on behalf of a testator who is incapable of signing themselves. This is only done when the testator is mentally capable but in pain and suffering from some sort of disability and is unable to sign themselves. It is also important to state that the person acting as the amanuensis will be excluded from inheriting from the testators will.

Article by: Theuri Nayagar,

Attorney & Director at Naidoo Nayagar Inc.