October 5, 2020

Explained: What goes into a will

Many people put off writing a will — which is understandable, given that planning for what happens after you die isn’t something pleasant to think about. 

But if you have a family of your own, a partner, or possessions that will need to be distributed in the event of your death, it’s wise to express your intentions for what must happen in the event of your death. If you don’t, there is a law called the Intestate Succession Act that determines how your possessions and money are distributed, which may not be what you had in mind.

Before you write a will, it’s important that you think carefully about its contents. This includes:

  • Deciding who to leave possessions to
  • Deciding who your children’s’ guardians should be, should you pass away before they turn 18
  • Deciding what you want to happen to your body
  • Deciding on the executor of your will 

Choosing an executor

You need to name the person you’d like to act as executor of your will. This person will make sure that your property is divided according to the wishes you’ve expressed. The executor will also take care of admin, like evaluating your estate (the property and assets you leave behind) and its debts, settling outstanding debts, and distributing or investing your estate as you intended it. 

If you don’t choose an executor, the Master of the High Court will appoint someone (usually a family) to the role. Because this is likely to add undue stress to someone already struggling to come to terms with your passing, it is a good idea to appoint a trusted attorney as executor. They will be able to make sure that your will is clear and concise, and that it’s an accurate representation of your wishes. Additionally, they’ll be able to explain the tax implications of the decisions set out in your will.

Most importantly, an experienced attorney will make sure that your will is valid. South African law is strict on the rules and procedures that must be followed here, with emphasis placed on authenticity and validity.

According to the Wills Act, there are several requirements which must be adhered to in order to render a Will valid. An experienced attorney will be able to assist you in drawing up a Will, but here are some points to consider.

Your intentions and wishes must be expressed in writing

A verbal will, including one recorded on video, is not valid. While a will can either be typed or handwritten, if it is written by hand by someone other than you, the scribe is not allowed to be named as a beneficiary in that will – for obvious reasons!

Your will must be signed

You need to sign each page of your will, and you also need to ask two competent witnesses (who also cannot be beneficiaries) to sign it. 

All three signatories need to be in each other’s presence when they sign the will – to ensure that no changes of which you are unaware are made to your will, your witnesses need to sign it at the same time as you do, and in your presence.

If, for any reason, you cannot sign your will, you can use your thumbprint or a mark such as a cross to signify your acceptance of its contents, as long as you do so in the presence of a Commissioner of Oaths as well as your two witnesses.

Collect the necessary supporting documents

You’ll need to supply the following when you draw up your will:

  • Name and identity number of the executor
  • Name and identity number of your spouse, as well as the details of your marriage (whether you’re married in or out of community of property), as well as a copy of your marriage certificate and, if applicable, a copy of your decree of divorce and settlement agreement)
  • Names and identity numbers of all the children, grandchildren dependents listed as beneficiaries 
  • Names and identity numbers of your minor children’s’ guardians
  • Details of organisations or institutions listed as beneficiaries 
  • Copies of title deeds or bond registrations for immovable property
  • Copies of all your insurance policies
  • A list of liabilities

You can revoke or change your will

If you change your mind about conditions set out in your will, or if your circumstances change, you can change it whenever, and as often, as you like – as long as each new version meets the stipulations set out above. If not, the most recent version that does will be regarded as your final will.

To make sure that your loved ones are adequately provided for, contact us on 011 347 0300 or info@lawmen.co.za for help drawing up your will. If you book an appointment during the Law Society of South Africa’s Wills Week, which runs from 26 to 30 October, we’ll do it for free! 

Robin Twaddle & Associates ©2017, All rights reserved. - Disclaimer