What Is a Will and How Do You Make a Valid One?
Having a will allows you to record what you want to happen to your estate after your death. However, simply having a document that you call a will does not necessarily mean that you have a valid will.
South African law prescribes formal requirements that must be followed for a will to be valid. Understanding those requirements is important, particularly if you decide to draft your own will.
What is a will?
The Wills Act 7 of 1953 provides that a “will” includes a codicil and any other testamentary writing.
In plain language, a will is a document in which a person records what they want to happen to their estate or property after their death.
The person who makes the will is traditionally referred to as the testator, if male, and testatrix, if female. For simplicity, we will generally use the word testator to refer to the person making the will.
Who can make a will?
In terms of section 4 of the Wills Act, a person who is 16 years or older may make a will unless, at the time of making it, they are mentally incapable of appreciating the nature and effect of what they are doing.
This means that the person making the will must understand that they are making a will and appreciate the effect of the decisions contained in it.
A will vs a valid will
There is an important difference between having a will and having a legally valid will.
You may have written down exactly who you want to inherit your property, but if the document was not executed in accordance with the requirements of the Wills Act, the Master of the High Court may be unable to accept it as a valid will.
Section 2(1) of the Wills Act prescribes the formalities that must ordinarily be followed when a will is executed.
What happens if your will does not comply with the requirements?
Section 2(3) of the Wills Act contains what is sometimes referred to as a rescue or condonation provision.
If a document does not comply with all the required formalities, an interested person may have to approach the High Court and ask the Court to order the Master to accept the document as the deceased's will. The Court must be satisfied, among other things, that the deceased drafted or executed the document and intended that document to be their will.
This should not be treated as an alternative to properly executing a will. High Court proceedings can involve legal costs, evidence, delay and uncertainty, and the application will not necessarily succeed.
If the defective document is ultimately not accepted as a valid will, the estate, or the portion not otherwise validly disposed of, may have to devolve according to the rules of intestate succession.
It is far better to comply with section 2(1) while you are alive than to leave your family with the task of trying to rescue your will after your death.
What are the requirements for a valid will?
For an ordinary will, the following formalities are particularly important:
The will must be in writing. It may be handwritten, typed or printed.
The testator must sign at the end of the will, or another person may sign in the testator's presence and at their direction.
The testator's signature, or acknowledgement of that signature, must take place in the presence of at least two competent witnesses who are present at the same time.
The witnesses must sign the will in the presence of the testator and in the presence of each other.
If the will consists of more than one page, the testator, or the person signing on their behalf, must also sign the preceding pages.
If the testator signs by making a mark, such as a cross, or another person signs on the testator's behalf, additional requirements apply and a Commissioner of Oaths must certify the will in accordance with the Act.
The Wills Act defines a competent witness as a person who is at least 14 years old and who is not incompetent to give evidence in a court of law.
Be careful who witnesses your will
As a practical rule, do not use a beneficiary under your will, or the spouse of a beneficiary, as a witness.
Section 4A of the Wills Act can disqualify certain people involved in the execution of a will from receiving benefits under it. This can include a person who signs as a witness, a person who signs on behalf of the testator, or a person who writes out the will or part of it in their own handwriting, as well as their spouses. There are statutory exceptions, but relying on those exceptions can create unnecessary complications.
Importantly, for this purpose, being nominated as an executor, trustee or guardian is also regarded as receiving a benefit under the will.
The safest practical approach is therefore to use two independent competent witnesses who are not beneficiaries under the will and whose spouses are not beneficiaries.
Can I draft my own will?
Yes.
You are not legally required to employ an attorney to draft your will. The Master of the High Court expressly confirms that you may draft your own will, provided that it complies with the relevant formalities required for a valid will.
Legal Aid South Africa also provides guidance on making a will and offers a free basic will template in Word and PDF format. View Legal Aid South Africa's will guidance and template
A template can provide a useful starting point, but you should still understand what the clauses in your will mean and whether they are appropriate for your circumstances.
Heirs, legatees and beneficiaries
You may encounter all three of these terms when drafting or reading a will.
A beneficiary is the broader term for someone who receives a benefit from the estate.
A legatee receives something specifically identified in the will. For example:
“I bequeath my motor vehicle to Lerato.”
or
“I bequeath R50 000 to Thando.”
An heir, in this context, generally receives the whole estate or a share of the residue of the estate, meaning what remains for distribution after liabilities and specific legacies have been dealt with.
SARS similarly distinguishes a legatee as someone receiving a specific asset and an heir as someone receiving the balance of the estate after the legacies have been dealt with.
Understanding this distinction becomes particularly useful when deciding how the clauses in your will should be drafted.
Clauses in your will
Not every will needs exactly the same clauses. Your will should reflect your assets, beneficiaries, family circumstances and wishes.
There are, however, some clauses that commonly form the core of a basic will, while other clauses become relevant only in particular circumstances.
Core clauses in a basic will
Revocation clause
A revocation clause records that the testator intends the new will to replace earlier wills and codicils.
For example:
“I hereby revoke all previous wills and codicils made by me.”
This helps avoid uncertainty about whether an older will was intended to remain in force alongside the newer one.
A revocation clause is good drafting practice, but its absence does not by itself mean that a will is invalid.
Appointment of an executor
An executor is responsible for administering the deceased estate.
A will commonly nominates the person the testator would like the Master to appoint as executor.
For example:
“I nominate [full name] as the executor of my estate.”
The word nominate is important. The will records your choice, but the executor receives the legal authority to administer the estate when the Master of the High Court issues the relevant authority.
It can also be sensible to nominate an alternative person in case your first choice is unable or unwilling to act. The Master recommends considering more than one nominee for this reason.
Bequests or legacies
If you want a particular person to receive a specific asset or amount, the will should identify that benefit clearly.
For example:
“I bequeath my motor vehicle, [description], to [full name].”
or
“I bequeath the amount of R50 000 to [full name].”
The person receiving that specific benefit is a legatee.
Specific assets should be described clearly enough to avoid uncertainty about what you intended to give away.
Heirs and the residue of your estate
Your will should also deal with what happens to the remainder of your estate after debts, administration expenses and specific bequests have been dealt with. This is commonly referred to as the residue.
For example:
“I bequeath the residue of my estate to my children, [names], in equal shares.”
A residuary clause is particularly useful because it reduces the risk of assets being left undisposed of simply because you did not specifically mention every item that you owned.
Additional clauses depending on your circumstances
Collation
Collation is a rule that may require certain substantial benefits given to a child during a parent's lifetime to be taken into account when that child later inherits from the parent's estate.
A simple example helps:
Suppose a parent has two children. While alive, the parent gives the older child a substantial amount of money to help them buy a car. The parent later dies, leaving both children as heirs. In certain circumstances, the earlier benefit given to the older child may be taken into account when the estate is divided so that the children are treated more equally.
This does not mean that every birthday present, small gift or amount of money given to a child must later be deducted from their inheritance. Collation has specific legal rules about when it applies.
If you do not want applicable lifetime benefits to be taken into account through collation, you can expressly exclude collation in your will.
Power of assumption
A power of assumption does not simply give an executor a general power to make financial decisions or appoint professional advisers.
It allows an executor, where properly authorised, to assume another person as an additional executor. Section 15 of the Administration of Estates Act regulates the appointment of an assumed executor.
A will may therefore grant the nominated executor the power of assumption where the testator wants them to have the ability to bring another executor into the administration of the estate.
Security clause
Security is a financial guarantee intended to protect the deceased estate if an executor does not properly perform their duties.
An executor may, in certain circumstances, be required by the Master of the High Court to provide security before being allowed to administer the estate. This may take the form of a bond of security, which provides financial protection to the estate if the executor causes a loss through improper administration. The Master's official forms specifically refer to an “undertaking and bond of security”.
A testator may include a clause asking that their nominated executor not be required to provide security, where the law permits this.
For example:
“I direct the Master to dispense with the furnishing of security by my nominated executor.”
However, the Master may still require security in circumstances provided for by the Administration of Estates Act.
Protection from a beneficiary's matrimonial property regime
A testator may want an inheritance to remain the separate property of a beneficiary, particularly where that beneficiary is or may become married.
For marriages subject to the accrual system, the Matrimonial Property Act generally excludes inheritances and legacies from the accrual calculation unless the spouses' antenuptial contract or the testator provides otherwise.
Where a beneficiary is married in community of property, an inheritance is not necessarily excluded from the joint estate unless the testator has stipulated accordingly. South African courts have recognised testamentary provisions expressly excluding an inheritance from community of property.
Because different matrimonial property regimes operate differently, this clause should be drafted with the intended protection clearly in mind.
Guardianship clause
Where a testator has minor children, guardianship may also need to be considered.
Section 27 of the Children's Act 38 of 2005 allows a parent who is the sole guardian of a child to appoint a fit and proper person in their will to become guardian after the parent's death. The person appointed must accept the appointment.
This means the clause is particularly relevant where you are the sole guardian of a minor child.
Guardianship arrangements can become more complicated where another person already holds parental responsibilities and rights, so the circumstances of the particular family remain important.
Testamentary trust
A testamentary trust is a trust created by a valid will and comes into operation following the testator's death. The will itself sets out the framework governing that trust.
A testamentary trust may be particularly useful where beneficiaries are minors or where the testator does not want a beneficiary to receive an inheritance outright immediately.
The will may need to deal with matters such as:
the trustees who will administer the trust;
the beneficiaries;
how trust assets may be used;
the trustees' powers;
when benefits may be distributed; and
when the trust should terminate.
A testamentary trust does not automatically terminate simply because a beneficiary turns 18. Its operation and termination depend on the provisions of the will and applicable law.
Because the wording determines how the trust will operate for potentially many years, consider obtaining professional assistance when creating a testamentary trust.
Insolvency or protective clause
If someone you want to inherit from you is insolvent or financially vulnerable, giving the inheritance directly to that person may have consequences because their creditors may have claims against their property.
A will can sometimes contain provisions intended to protect or manage an inheritance differently, for example by providing for assets to be administered through a trust rather than simply paying the inheritance directly to the beneficiary.
Important: We mention this type of clause to educate you that protective provisions of this nature exist. Insolvency, creditor rights and trusts are legally complex, and inserting a standard clause does not necessarily protect an inheritance from creditors in every situation. If insolvency protection is relevant to your circumstances, consider obtaining advice from a qualified legal practitioner before including such a provision in your will.
What about a joint will?
Two or more people may record their wills together in one document. This is known as a joint will.
Joint wills are frequently used by spouses, but the fact that two people have used the same document does not automatically mean that they have combined their estates.
South African courts have described a joint will, ordinarily, as the separate wills of two testators contained in one document.
A joint will does not automatically mean that the people making the will have combined their estates.
Combining estates for purposes of a will is known as massing, and it is a separate legal concept. In simple terms, massing may occur where two or more people combine some or all of their property under a joint will and create a particular plan for how that property must be dealt with after one of them dies.
Because massing can affect the surviving person's rights to property, it is more complex than simply making a joint will. If you intend to combine estates in this way, consider obtaining professional legal advice.
Useful resources and legislation
The following resources can help you read further and verify the legal principles discussed in this article:
Wills Act 7 of 1953
The principal legislation dealing with the execution and validity of wills.
Master of the High Court: Wills
Official guidance on making a will, witnesses, executors and deceased estates.
Legal Aid South Africa: Drafting of Wills
Plain-language guidance together with free basic will templates.
Administration of Estates Act 66 of 1965
Relevant to matters including executors, power of assumption and security.
Children's Act 38 of 2005
Relevant, among other things, to the appointment of a guardian by a sole guardian in a will.
Matrimonial Property Act 88 of 1984
Relevant to the treatment of inheritances and matrimonial property regimes.
SARS: Estate Duty
Includes useful explanations of deceased estates, heirs and legatees.
Master of the High Court: Trusts
Official information about inter vivos and testamentary trusts.
A will can be simple, but its consequences can be significant. The clauses you choose should reflect your circumstances and your intentions, and more complex estate-planning arrangements may require professional assistance.
Know what you are signing. Understand what each clause does. Make sure your will is valid.
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