Frequently asked questions on Wills in South Africa

Financial planning experts agree that creating a Will is important, regardless of your circumstances or financial position. Your Will provides clear instructions to your executor, helping to ensure that your wishes are carried out and your assets are protected for the benefit of your loved ones.

In your Will, you can stipulate how your assets will be distributed, who will receive them, and when and how beneficiaries may access their inheritances.

A Will is also key in determining who will be the guardian of your minor children (children under the age of 18) ensuring that someone you trust will care for them in the event of your death. 
 

If you die without a Will, your assets will be distributed in terms of the Intestate Succession Act. This means that your estate could be distributed to beneficiaries determined by law, rather than by the people you would have chosen yourself.

The executor is nominated in your Will and formally appointed by the Master of the High Court after your death. This person is responsible for the administration of your estate and for ensuring that your debts are settled and your assets are distributed according to the instructions set out in your Will. This process is governed by the Administration of Estates Act, which regulates how an estate is managed.

Anyone who is 18 years or older can be nominated as an executor, however, the Master of the High Court may insist that the nominated executor be assisted by a professional executor who has experience in the administration of deceased estates.

A private individual may be appointed as an executor; however, there are potential risks to consider. For example, the individual may not have the necessary knowledge and experience to administer an estate effectively or they may pass away before you.

Any person aged 16 or older can create a Will.

All Wills must be in writing and can be handwritten, typed or printed. For the Will to be legally valid and enforceable, it needs to comply with the following conditions:

• The individual creating the Will, the testator, must be mentally capable of “appreciating the nature and effect” of their action.
• The testator needs to sign each page of the Will.
• Two competent witnesses need to be present at the same time when the testator signs the Will.
• The witnesses are to witness the testator's signature on the last page of the Will in each other’s presence.  
• The Will should be dated.

A blind or visually impaired individual can sign a Will by making a mark or using a thumbprint on the Will provided it is attested by a Commissioner of Oaths or Notary Public.

Any person aged 14 years or older can be a witness. Note that this person needs to be considered competent to give evidence in court at the time they act as a witness to your Will.

To avoid potential complications, a beneficiary named in the Will or their spouse should not act as a witness, as this could result in the beneficiary forfeiting the benefit they would have otherwise inherited.
 

Numerous factors can influence whether your Will is deemed valid or not. To ensure that your wishes can be carried out and to avoid unnecessary delays or disputes, it is important that your Will complies with all legal requirements.

Here are a few reasons why a Will may be considered invalid:

• The Will is not signed correctly:  Your Will must be signed on each page and at the end of the document to ensure its legality and validity.
• The Will is not properly witnessed: A will must be signed in the presence of two competent witnesses, who must both be present when the will is signed.  It is important to select witnesses who are not beneficiaries or potential beneficiaries. 
• Amendments to the Will are not properly signed or witnessed: Any changes made to a Will during its execution should be signed by you and witnessed by both witnesses in each other's presence. In many cases, it is safer and more practical to draft and sign a new Will.

It’s recommended that your Will is reviewed at all significant life changing events such as getting married, having children, getting divorced, or when a beneficiary passes away. Changes to your financial circumstances, including the acquisition of new assets may impact your estate planning objectives. Therefore, it is advisable to review your Will annually. 

If you pass away within 3 months of your divorce without updating your Will, any benefit left to your former spouse will generally be treated as if your former spouse had died before you, and they will not inherit from your estate.

However, if more than 3-months have passed since the divorce and you have not amended your Will, your former spouse may inherit in terms of the provisions of your existing Will.

If there are not enough funds in your estate, your executor may be forced to sell your assets, which may be to the detriment of your beneficiaries. It is important that proper estate planning be done when creating a Will to ensure that sufficient funds are available, protecting the value of your estate and your beneficiaries' inheritance.

Your Will is one of the most important documents you will create, and it needs to be stored safely to prevent theft, damage or loss.

When a deceased estate is reported, the Master of the High Court only accepts original signed Wills. 

You can keep a copy of it for your records, but it’s important that the original Will is safely stored and can be located when needed.

Should Standard Bank be nominated as an executor or co-executor in your Will, then your original signed Will can be stored in our safe custody facility for an annual fee, providing you with peace of mind that your Will will be protected and readily available when required.
 

While it is possible to draft your own Will, obtaining professional estate planning advice can help ensure that your Will is legally valid, practical to implement and aligned with your overall financial and estate planning objectives.

Professional estate planning considers the preservation and growth of wealth, protection of assets, provision for beneficiaries, ensures liquidity requirements, continuity of wealth across generations and the minimisation of tax and estate administration costs. 

Learn more about drafting and keeping your Will safe.