THINGS TO REMEMBER
• All wills must be in writing.
• You can sign your will personally or ask someone to sign on your behalf but that must be done in the presence of a Commissioner of Oaths.
• Signing as a witness disqualifies you from receiving any benefit out of the will, including being appointed as executor.
• Keep the original will SAFE.
Follow this link to a draft Will available on Legal Aid SA's website.
To report a deceased estate, you need
to submit the following documents:
• Original or a certified copy of the death certificate.
• Original or certified copy of the marriage certificate/decree of divorce (if any).
• Original will.
• Completed death notice.
• Completed next-of-kin affidavit.
• Completed inventory showing al the assets of the deceased.
• Nominations by all the beneficiaries for the appointment of an executor and a certified copy of the executor’s ID.
• Declaration of existing marriage.
• List of creditors.
• Acceptance of trust as executor/Master’s Representative (in duplicate) together with a certified copy of the ID of such applicant.
What is said hereunder is not meant to be a comprehensive guide on wills.
A will, also known as a testament, is a document in which a person sets out what must happen to their estate when they die. A person can also nominate the person or persons, known as executors, who should administer their estate on their death. A will is a specialized document, which should preferably be drawn up by an expert like an attorney, trust company etc. The information is merely to inform the user of this site about some basic aspects of wills.
A person’s estate consists of all their assets (belongings, property) and liabilities (debts) which they had as at date of death.
To administer an estate means to collect or take control of all the assets of the deceased, to pay the debts which the deceased left at date of death, and then to pay the balance left for distribution to the rightful heirs of the deceased as determined in the will, or if you do not have a will, to the heirs as determined in terms of the rules of intestate succession.
Why should you have a will?
It allows you to decide who should be the beneficiaries of your estate once you die. in your will, you can also appoint the person who will administer your estate.
Who is competent to make a will?
The person who draws up a will is known as the testator (male) or testatrix (female). .
All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death, unless they were mentally incapable of appreciating the consequence of their actions at the time of making the will.
You can get assistance from attorneys, banks, chartered accountants, boards of executors, insurance companies, trust companies and various individuals who have the necessary qualifications.
You can, however, draft your own will as well, but you need to make sure that it complies with all the relevant formalities to be accepted as a valid will.
Follow this link to a draft Will available on Legal Aid SA's website.
Who is competent to act as a witness to a will?
All persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law.
A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. There are some exceptions to this rule. Consult your legal representative for more information in this regard.
What you need to know when drafting a will? (Checklist)
Where to keep a will?
Ensure that your original signed will is kept safe by a trustworthy person or institution, as a copy of a will is not deemed a valid will. You can also have more than one signed copy of the original will and request different trustworthy persons too. Each keep a copy, in order to ensure that there will be an originally signed copy available after your death. Inform your family and heirs where/who is keeping a copy (or copies) of your will, so that they do not struggle to obtain it after your death.
Why and how to appoint an Executor of your estate?
By nominating your own executor, you ensure that someone you trust will take care of your estate and your heirs’ interests after death. The administration process of a deceased estate is a complex process with many legal requirements, you ensure that you nominate someone who will be able to do what is required.
What are the requirements for a valid will?
Since 1 January 1954 all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses.
The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/testatrix. Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.
What are the requirements for a valid will, if I cannot sign his/her name?
If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross). When the will is signed by someone on behalf of the testator/testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix.
The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.
What is a codicil?
A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.
What if I want to amend my will?
Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.
Must I amend my will after divorce?
A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
This provisions to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.
Who is disqualified from inheriting under a will?
The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on instruction of the testator or as a witness. Consult your legal representative for more information in this regard.
What will happen if I do not leave a will?
If you die without leaving a will or a valid will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987).