How to write a valid will in South Africa

A valid will in South Africa has to meet a short list of formal requirements set out in the Wills Act 7 of 1953. It must be in writing. You must sign it at the end, and on every other page, in the presence of two competent witnesses who are present at the same time. Those witnesses must then sign in your presence. Anyone aged 14 or older who is able to understand what they are doing can witness. A will does not have to be notarised, registered, typed or drafted by an attorney.

It does have to be done properly. A will that fails on formalities is usually treated as if it never existed, and your estate is then divided by the rules in the Intestate Succession Act 81 of 1987 instead of by your wishes. Read what happens if you die without a will to see what that means in practice. Here is how to get it right.

The formal requirements, one by one

In writing. Typed or handwritten both work. A voice note, a video or a text message is not a will.

Signed by you at the end. Your signature goes after the last provision. Anything written below it is at risk of being ignored.

Signed by you on every other page. Initials are commonly used and generally accepted, but a full signature on every page removes any argument.

Two competent witnesses, present at the same time. Both witnesses must watch you sign, or watch you acknowledge a signature you have already made, and they must both be in the room together when it happens. A witness who signs later, or in another room, breaks the chain.

Witnesses sign in your presence. Each witness signs in front of you and in front of the other witness, at the end of the will. It is common practice for them to sign every page as well, and it costs nothing to do so.

Witness age and capacity. A witness must be at least 14 and able to understand that they are witnessing a signature. They do not need to read the will.

If you cannot sign, and instead make a mark or ask someone to sign for you, extra formalities apply, including a certificate from a commissioner of oaths. Get help with that.

Who can make a will

Anyone aged 16 or older can make a will, provided they are mentally capable of understanding what they are doing at the time they sign. A will signed in a hospital bed or a frail care home invites a challenge. If there is any question about capacity, ask a doctor to record an assessment on the day, and use an attorney.

Who should not witness your will

This is where most home-made wills go wrong. A person who witnesses a will, or writes it out by hand for you, or who is married to such a person, generally loses any benefit the will gives them. The will itself usually stays valid. The gift fails. Do not let these people witness:

• anyone who inherits anything under the will
• the spouse of anyone who inherits
• the person you name as executor, guardian or trustee, since a nomination is treated as a benefit
• the spouse of the executor, guardian or trustee

Use two adults with no stake in the estate, such as colleagues or neighbours. There are narrow exceptions a court can apply, but none is something to rely on.

What a good will contains

The law does not prescribe content. A one-line will leaving everything to one person, properly signed and witnessed, is valid. A useful will usually covers these things.

Revocation. A sentence cancelling all earlier wills, so there is no argument about which document governs.

Your executor. The person or institution that winds up your estate. Name an alternate in case your first choice cannot act. Read what an executor does and how much they charge before you choose, and consider stating that the executor need not provide security to the Master, which saves cost and delay.

Specific bequests. Named items or sums to named people, using full names and ID numbers where possible.

The residue. Everything left after debts, costs and specific bequests. Most of your estate usually sits here, so say clearly who gets it and in what shares.

Substitution. What happens if a beneficiary dies before you. Without this, the gift generally falls into the residue or into intestacy.

Minor children. A guardian nomination, and a testamentary trust to hold their inheritance until an age you choose. Without a trust, a minor's cash inheritance goes into the Guardian's Fund at the Master's office. Read what a testamentary trust is.

Marital regime. If you are married in community of property, you can only dispose of your half of the joint estate. Do not try to give away the other half.

Retirement fund benefits and life policies with nominated beneficiaries generally pass outside the will.

A worked example

The figures are illustrative only.

Nomvula is 52, divorced, with two children aged 19 and 15. She owns a house worth R1 400 000 with a bond of R300 000, a car worth R180 000, and savings of R250 000. She writes her will herself on a Sunday afternoon.

She types two pages, leaving the house to both children equally, the car to her son and the savings to her daughter, and naming her sister Zanele as executor. She signs at the end. She asks Zanele and Zanele's husband to witness. They sign on page two only. Nomvula forgets to sign page one and never nominates a guardian for her 15-year-old.

If she died that year, the will could be attacked because page one is unsigned. If it survives, Zanele's nomination as executor fails because she witnessed it, and the Master appoints someone else, who charges the regulated executor's fee of 3.5% on about R1 830 000 of gross assets, roughly R64 000 before VAT. The 15-year-old's share cannot be paid to her directly, so it is held for her until she turns 18. Nobody was named as guardian, so the family goes to court about that too.

Now the same will done properly. Nomvula signs both pages. Two colleagues witness in the same sitting. She names Zanele as executor, exempts her from providing security, and names a second sister as alternate. She adds a simple testamentary trust for any child under 21 and nominates Zanele as guardian. Same wishes, same afternoon, a different result for her children.

What to do this week

1. List your assets and debts with rough values. The executor fees and estate duty calculator gives a first estimate of what the estate will cost.
2. Decide on your executor and an alternate. Ask them first.
3. Decide who inherits what, including what happens if a beneficiary dies before you.
4. If you have minor children, decide on a guardian and whether you want a trust.
5. Write the will or have it drafted. Banks often draft a simple will at no charge if you appoint them as executor. See what a wills and estates attorney costs.
6. Sign it correctly, in one sitting, with two neutral adult witnesses.
7. Store the original somewhere safe and tell your executor where it is.

Documents to gather

Drafting is faster and more accurate if you have:

• your ID and the full names and ID numbers of every beneficiary and your executor
• your marriage certificate and antenuptial contract, if any, because your marital regime affects what you can leave
• title deeds or bond statements for property
• a list of bank accounts, investments, retirement funds and policies, with rough values
• a list of debts
• any earlier will, so that it can be revoked and destroyed

Realistic timeline

A simple will can be drafted and signed in a single day. An attorney-drafted will usually takes a consultation, a few days for the draft and a second meeting to sign, so allow one to two weeks. A will with a testamentary trust, business interests or foreign assets takes two to four weeks.

Common mistakes and what they cost

• A beneficiary or their spouse witnesses. The gift to that person fails. A house left to a child who witnessed can end up in the residue or in intestacy.
• Pages left unsigned. An unsigned page can be attacked as not part of the will. Fixing it after death means a High Court application, typically tens of thousands of rand.
• Witnesses sign separately. The whole will can fail. The estate then passes on intestacy, which may cut out a life partner entirely.
• An unsigned draft in a drawer. The Master can accept a defective document only if a court is satisfied you intended it as your will. That application takes months and costs far more than a properly signed will would have.
• No alternate executor. If your executor has died or declines, the family must agree on someone and the Master must approve them, which delays the estate by weeks.
• A will not updated after divorce. If you die within three months of a divorce, the law reads your will as if your former spouse died before you. After three months, a will that still names your former spouse is taken at face value.
• Original lost. Without the original, the executor must prove the copy through a court application.

Changing or cancelling a will

Change a will by making a new one that revokes the old one, or by a codicil, which is a supplementary document signed and witnessed with exactly the same formalities. Handwritten changes on the face of the will are not effective unless they are signed and witnessed as if they were a will. Review your will after every marriage, divorce, birth, death and major purchase.

If you cannot afford an attorney

You do not need one to make a valid will, and the formal requirements above are the whole test. A bank or a trust company will usually draft a simple will for free or for a small fee if you name it as executor, though the executor's fee it later charges is the real price, so ask about that. Legal Aid South Africa on 0800 110 110 gives advice on wills to people who pass its means test. University law clinics draft wills for indigent clients in most major centres. Whatever route you use, the signing rules are yours to get right on the day.

Frequently asked questions

A will need not be typed, and there is no compulsory register. A will made abroad is generally valid here if it complied with the law of the place where it was signed, but foreign assets often need a separate will, so get advice if you own property outside South Africa.