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Understanding and drafting your own Will.

In very basic terms, a Will refers to a document in which a person sets out what should happen to their estate when they die, the relevant law is the law of succession. Having a Will is one of the most important things you can do for yourself and your loved ones and without one, the legal system will decide how your estate will be distributed. 

In this article, we will provide you with the information you need to draft your own Will. If you need a more detailed explanation of the Law of Succession, please contact us. 


In South African law, anybody who is at least 16 years of age (who is mentally capable of appreciating the nature and effect of a Will) can draft their own Will. It is not necessary to have a Will drafted by an expert, unless you have a complicated estate and need assistance with planning and management. In this instance, we always advise getting general advice and the assistance from an experienced attorney. 

Before you start drafting your Will, it is important to read through the below list of requirements for a valid Will: 

1. It must be in writing; 

2. The testator (the person who is drafting the Will) must sign the at the end of the Will. On this point please take not that: 

a. your full signature is required; 

b. someone else can sign on your behalf if you are illiterate, but then a commissioner of oaths must confirm that it was signed on your behalf and that you confirmed that the content of the Will is as per your wishes; 

c. Under certain conditions an electronic signature may be accepted. 

3. All pages of the Will must be signed in the presence of at least two witnesses (who are at least 14 years old) who are all present at the time as you when you signed; 


Other factors to consider are: 

1. The Wills Act does not require you to put a date on your Will. But if there is more than one Will, the most recent Will is considered valid. It goes without saying that if the Wills are undated then it will be difficult, if not impossible, to determine which Will is the most recent and valid. It is therefore always better to put a date on your Will. 

2. If you want, you can make amendments to your existing Will, but this process is complicated and could lead to the Will being challenged later. It is much better to draft a new Will and incorporate in to the new Will the changes that you want to make. 


All Wills need to contain basic content which includes the following: 


The Executor: One of the first decisions that you need to make and put into your Will is who you would to like be the executor of your Will. This is the person that will put into effect what you have stipulated in your Will. It is important to ensure that they are prepared to accept the appointment as executor and that they are capable of executing your Will for you. In terms of our law, the executor is entitled to a fee which is set at 3.5% of the value of the estate plus VAT if the executor is registered for VAT. 


Beneficiaries: Determining who gets what is one of the most important decisions you will make. In Succession Law, there are two types of beneficiaries - a legatee and an heir. A legatee is someone you leave a specific sum of money to or a specific asset or collection of assets. An heir is someone who you leave your entire estate, or a percentage of your estate, 

to. There is quite an important difference between a legatee and an heir. A legatee will receive their legacy before determining the residue of the estate. The residue is what is left in an estate after debts/liabilities have been settled, all taxes and expenses have been paid, after legacies have been paid out, any potential maintenance claims have been settled and any possible accrual has been settled. An heir receives their inheritance from the residue of the estate. 


There are also a few classes of people who may not inherit from a will. They are: 

1. A person who intentionally, directly or indirectly, caused the death of the testator; 

2. A person who, through fraud or duress, prevented the testator from making a Will may not inherit from an earlier Will or intestate (that is where there is no Will at all); 

3. Any person who witnesses a Will or who writes out the Will (or part thereof) in his/her own hand. However, if a court is satisfied that there was no intention to defraud or unduly influence the testator then they will be entitled to inherit. This is important to keep in mind when drafting your will and making arrangements to have it witnessed. The last thing that you want is for your beneficiary not being able to inherit because you asked them to also witness the Will for you. 


A further key factor to consider is; are any of your beneficiaries minors. This is important as, if there are minors who inherit, what they inherit will fall under the control of the minor’s guardians until they turn 18. You should consider creating a trust in your will to look after the funds inherited by minors. This way you can decide who will look after these funds until the minors turn 18, or whatever other age you choose. 


The final consideration to set out in your Will is what you would like to be done with your mortal remains - do you want to be buried or cremated and what would you like done with your ashes? Your passing away will be a very difficult and emotional time for those that you leave behind and as a result, the more decisions that you can make for them the better. 


We hope that this article has been helpful and that you are now able to draft your own Will. Should you require more information or have any questions, please email us at mouchanev@alanjoseatt.co.za. 


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