Drafting a Will in South Africa: A Step‑by‑Step Legal Guide
Drafting a will is one of the most important legal acts you can take to ensure your estate is distributed according to your wishes. In South Africa, the process is governed primarily by the Wills Act 7 of 1953 and the Administration of Estates Act 66 of 1965. Failing to draft a valid will can result in your estate being distributed according to intestate succession laws, which may not align with your personal intentions.
This guide provides a clear step-by-step breakdown of how to draft a legally valid will in South Africa, answers frequently asked questions, and explains how Benaters can help.
Step‑by‑Step Guide to Drafting a Will in South Africa
Understanding how to draft a will in South Africa is crucial for ensuring your final wishes are legally binding and clearly articulated. While the process can seem daunting, following a structured approach ensures accuracy and compliance. Here’s a clear, numbered guide detailing the will drafting process, which our will drafting South Africa experts can seamlessly assist you with:
Assess Your Estate: Begin by listing all your assets (property, investments, savings, personal belongings) and liabilities (debts, mortgages). This provides a comprehensive overview of what needs to be distributed.
Identify Beneficiaries: Clearly decide who will inherit your assets. This includes individuals, charities, or trusts. Be precise with full names and identification where possible to avoid ambiguity.
Appoint an Executor: This is the person or entity responsible for carrying out the instructions in your will. Choose someone trustworthy, capable, and ideally, a professional will lawyer like those at Benaters, who understands the complexities of estate administration.
Nominate Guardians (if applicable): If you have minor children, appoint guardians who will care for them should anything happen to you.
Specify Bequests: Clearly state which assets go to which beneficiaries. You can specify general bequests (e.g., a sum of money) or specific bequests (e.g., a particular property).
Include Residue Clause: This clause deals with any assets not specifically mentioned in the will, ensuring no part of your estate is left intestate (undistributed by will).
Address Debts and Taxes: Your will should include instructions for the payment of debts, taxes, and other liabilities from your estate.
Revocation Clause: Ensure your new will includes a clause revoking all previous wills and codicils.
Witnessing and Signing: This is a critical legal step. Your will must be signed in the presence of two competent witnesses (who are not beneficiaries or executors in the will), and they must also sign in your presence and in the presence of each other. Our will attorneys near me can oversee this process to ensure validity.
Safekeeping: Once drafted and correctly signed, store your will in a safe and accessible place, and inform your executor of its location.
✅ Why Having a Will Matters
Without a valid will:
- Your estate will be administered according to intestate succession, potentially disinheriting those you care about most.
- The process of winding up your estate can be more complex, costly, and time-consuming for your loved ones.
🔍 Frequently Asked Questions About Drafting Your Will
Here are some common questions our clients ask about how to write a will and related matters:
Q: Who must write a will in South Africa?
A: While not legally mandatory, it is highly recommended that anyone over 16 years of age with assets or dependents draft a will. It ensures your wishes are respected and simplifies the process for your loved ones.
Q: Can I write my own will without a lawyer?
A: While legally permissible, it's generally not advisable. Wills written without legal expertise often contain ambiguities or errors that can lead to disputes or invalidate parts of the will. A professional will lawyer ensures your will is legally sound and comprehensive.
Q: What is the difference between a will and a living will?
A: A last will and testament dictates how your assets are distributed after your death. A living will (or advance healthcare directive) expresses your wishes regarding medical treatment should you become incapacitated.
Q: How often should I update my will?
A: It's good practice to review and update your will every 3-5 years, or after significant life events such as marriage, divorce, birth of children, acquisition of major assets, or changes in beneficiary circumstances.
Q: Can I handwrite my will?
A: Yes, but all pages must be signed and witnessed correctly. A handwritten will is valid if it meets all legal requirements.
Q: Can my spouse or child be a witness?
A: No. Beneficiaries and their spouses cannot act as witnesses, or they may be disqualified from inheriting.
Q: Can I appoint more than one executor?
A: Yes. You may appoint joint executors (e.g. a family member and a legal professional).
Q: What happens if I lose my will?
A: Only the original will is accepted by the Master’s Office. A copy may be rejected, leading to intestate succession.
⚖️ Executor Responsibilities
An executor is responsible for:
- Applying to the Master of the High Court for Letters of Executorship
- Advertising the estate and identifying liabilities
- Collecting and safeguarding estate assets
- Opening an estate late bank account
- Paying debts and distributing inheritances
- Preparing the Liquidation & Distribution Account
- Obtaining tax clearance from SARS
Executors are entitled to a fee (typically up to 3.5% of the estate’s value, plus VAT).
📞 Contact Us to Draft Your Will
Don’t wait until it’s too late. Our expert legal team will ensure your will meets all South African legal requirements and reflects your wishes accurately.
👉 Contact us to draft your will
⚠️ Disclaimer
This article is for informational purposes only and does not constitute legal advice. For personalised assistance, please speak to one of our experienced will attorneys.