Legislation

The creation, interpretation, and execution of wills is covered in The Wills Act 7 of 1953. Introduced in 1953, this legislation has undergone various amendments, but its core principles have remained intact. The Act provides safeguards to protect the interests of both testators and beneficiaries, promoting fairness and clarity in the administration of estates.

What Makes a Will Valid in South Africa?

Under the Wills Act 7 of 1953, a will is only valid if it meets specific legal requirements. These rules exist to protect against fraud, coercion, and ambiguity — and if your will doesn’t comply, it may be declared invalid.

Legal Requirements for a Valid Will:

• The testator (person making the will) must be 16 years or older and mentally competent at the time of drafting.
• The will must be in writing — either typed or handwritten. If handwritten, it must not be written by someone who stands to benefit.
• Every page of the will, including the last, must be signed by the testator and two competent witnesses.
• Witnesses must be at least 14 years old and cannot be beneficiaries under the will.
• All parties must sign in each other’s presence to confirm authenticity.

If the testator is unable to sign (due to physical disability), a thumbprint may be used — but only in the presence of a Commissioner of Oaths, who must certify the circumstances.

A will that fails to meet these criteria can be contested — or ignored entirely — leading to intestate succession, where your estate is distributed according to default rules rather than your wishes.

What to Consider When Writing a Will

Writing a Will is about more than listing who gets what. It’s about ensuring your wishes are enforceable, fair, and considerate of your family's needs and future challenges. Before drafting a will with your attorney, spend time thinking through the following:

Practical Questions to Consider:

• What assets do you own, and what are they worth? (Include property, savings, investments, shares, vehicles, insurance, and digital assets.)
• Who should inherit? Consider children, partners, family members, or charitable causes.
• Do you want to make specific gifts (e.g. jewellery, heirlooms, sentimental items) to certain people?
• Who should manage your estate? A professional executor, like a bank or wills and estates lawyer, is often more reliable than a family member.
• Do you have minor children? You’ll need to name a guardian — someone you trust to care for them.
• What is your marital regime? If you’re married in community of property, you can only bequeath your 50% share of the joint estate.
• Are there tax implications or debts that need to be settled?
• Do you have preferences for your medical care, organ donation, or funeral arrangements?
• Have your family dynamics changed recently (e.g. remarriage, estranged relatives, blended families)?

By reflecting on these questions, you’ll be better prepared to work with a wills and estates lawyer to draft a will that’s not just legally valid — but practical, personal, and fair.

Components of a Legally Sound Will

A will should be clear, detailed, and legally enforceable. While the structure can vary depending on your needs, certain components are essential to ensure your instructions are carried out correctly.

1. Personal Information

Start with your full legal name, ID number, and address to clearly identify yourself as the testator. This avoids any confusion about the will’s authorship.

2. Declaration of Testamentary Intent

Include a clause stating that this is your last will and testament, and that it revokes all previous wills or codicils. This prevents conflicting documents from being used.

3. Appointment of an Executor

The executor is responsible for handling your estate — settling debts, filing taxes, and distributing assets. Choose someone with financial acumen and emotional stability, or appoint a professional executor or legal firm.

4. Beneficiaries

List each beneficiary by full name and ID number where possible. Be specific about what each person will receive, whether a percentage of the estate or specific items.

5. Specific Bequests

List individual items or accounts you want to leave to certain people — such as:

• Properties
• Investment portfolios
• Family heirlooms
• Digital assets (e.g. cryptocurrency, online accounts)

This avoids family conflict and ensures your intentions are honoured.

6. Residual Estate

This is the “everything else” — what’s left after specific bequests, debts, and expenses. You’ll need to state who gets the balance, and in what proportions.

7. Appointment of Guardians

If you have children under 18, name a legal guardian — and a backup if your first choice is unavailable. Without a guardian clause, the court decides who takes custody.

8. Testamentary Trusts

If your children are minors or your beneficiaries are financially vulnerable, your will can create a testamentary trust to manage their inheritance until they reach a certain age.

9. Funeral Instructions

Include your preferences around burial or cremation, service type, or religious customs. While not legally binding, they help guide your family during a difficult time.

10. Debts and Liabilities

Acknowledge any outstanding loans, credit cards, or debts that should be settled from your estate. This ensures clarity for your executor and reduces disputes.

11. Exclusions or Conditions

If you intend to disinherit someone, make this clear. You can also attach conditions (e.g. a beneficiary must reach a certain age or complete a qualification to inherit).

12. Signature and Witnesses

As detailed earlier, the will must be signed in full by the testator and two competent witnesses, with all parties present during signing.

What to Avoid When Drafting Your Will

Even with the best intentions, many homemade or DIY wills end up invalid, unclear, or incomplete. These are some of the most common pitfalls:

• Vague or ambiguous wording – This leads to disputes or delays in execution. Be precise about what you want and who gets what.
• Outdated information – A will should be reviewed regularly, especially after life events like marriage, divorce, births, or major purchases.
• DIY templates – Generic online forms may not comply with South African law. Every estate is different — professional guidance is essential.
• Lack of legal knowledge – Without legal advice, you may overlook tax implications, trust structures, or executor responsibilities.

The Consequences of Dying Without a Will

If you pass away without a valid will, your estate is dealt with according to intestate succession laws — a strict set of rules that do not take your wishes into account.

Here’s what could happen:

• You lose control – The law, not you, decides who inherits.
• Your life partner may be excluded – If you aren’t legally married, your partner could receive nothing.
• A government guardian may be appointed to manage minors' inheritances.
• Family disputes may arise due to uncertainty and unequal distributions.
• The administration process is longer and more expensive, especially if no one is willing or able to act as executor.

Without a will, even simple estates can take years to wind up — leaving your loved ones financially vulnerable at the worst possible time.

VDM Attorneys – Wills and Estate Lawyer

Whether you're drafting your first will, updating an existing one, or handling a deceased estate — it's worth doing it properly.

Our attorneys have extensive experience in drafting wills and offering personalised legal advice tailored to your life and assets. We’ll help you structure a will that reflects your wishes, protects your beneficiaries, and complies with South African law.

Contact VDM Attorneys to speak to a wills and estates specialist.