Consumer Information

Author:  Shaun Benater
Benaters
8 March 2022

Wills, trusts and deceased estates

What can be contained in a will?
Our Constitution (at Section 25 of the Constitution) gives us all what is known as “freedom of testation”. It grants a testator extensive power to draft a will which directs how his or her estate’s assets must be distributed upon death.

A will allows a testator to dispose of the whole or any part of his/her estate (now known as the deceased estate) as he/she pleases. A person’s estate is made up of the aggregate of assets and liabilities at the time of passing. This can include immovable property, jewellery, shares and unit trusts or even your beloved sheepskin slippers.

A will also enables a testator to institute heirs and appoint legatees (or their substitutes), postpone the vesting of a bequest (something that is handed down by virtue of a will) subject to a condition, create trusts, appoint trustees and administrators (and to regulate their powers), appoint executors and guardians and even make a will without naming beneficiaries (such as one in which a previous will is revoked, an executor appointed, or an heir disinherited).

Basically, as long as it is not illegal, impractical or against public policy you can leave anything to anyone in your will. Provided your will is valid.

But there are several limitations to this freedom of testation which must be kept in mind.

  • Common law –
    a provision of a will cannot be exercised where it is unlawful, against good morals, too vague or impossible to perform, and
  • minor children of the deceased will have a common law claim to maintenance.

Legislation –
Where pension funds, trust property or spousal maintenance are concerned.

There is also the application of public policy and Section 13 of the Trust Property Control Act 57 of 1988 to negate the effect of unfairly discriminatory exclusions in testamentary charitable trusts. Lastly, there is the balancing of provisions of a will against constitutional imperatives regarding equality and non-discrimination, provided it complies with Section 36 (limitation clause) of the Constitution.

What are the requirements for a valid will in South Africa?
Section 2(1)(a) of the Wills Act 7 of 1953 sets out the pretty straight forward requirements for a valid will. However, keep in mind that a small oversight can render your will invalid, so take note –

  • The testator must be older than 16 years of age;
  • The testator must be mentally capable of understanding the consequences of his or her actions at the time that the will was drafted. Wills or provisions that are proven to be drafted under duress, undue influence or mistake will be invalid;
  • The will must be in writing. You can choose to type it out or handwrite it, but the words must be legible and in your own name;
  • The testator must sign at the end of the will. While the act is not clear in this regard, it is recommended that the signature be placed just below or as near as possible to the last line of the will;
  • The testator may request a person to sign on his or her behalf. In such event, the signature must be made in the presence of the testator, at least two competent witnesses, and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages;
  • The testator may sign his/her will by making a mark or a thumbprint in the presence of at least two competent witnesses and a commissioner of oaths. The commissioner of oaths must certify the will and sign each page. Witnesses may not sign by making a mark or thumbprint;
  • If the will is longer than one page, the testator (or someone on his/her behalf) must also sign every other page of the will, anywhere on the page;
  • The testator’s signature on the last page must be made or acknowledged in the presence of 2 competent witnesses who are present at the same time. According to section 1 of the Wills Act, a competent witness is anyone over the age of 14 who is of sound mind and capable of understanding the consequences of his or her actions and can testify in court, and
  • The witnesses must sign the last page of the will. The signatures can be made anywhere on the last page, but it is recommended that they are made below or as near as possible to the last line of the will. The witnesses’ role is to witness the signature of the testator or the person signing on the testator’s behalf. It is therefore not necessary for the witnesses to read the will. Although it is not a legal requirement, it is recommended that the witnesses also sign every other page of the will.
  • This is not a legal requirement but you should date your last will and testament to avoid any confusion (in case more than one will is found).

Note: the beneficiary or executor of the will must not sign a will as a witness. If they do, they may be disqualified from inheriting under the will (the validity of the will however will not be affected).

A further note: the question as to when you should draft a will often arises. The simple answer – if you are over the age of 16 and are legally able to draft a will, then you can do so. Please see the above requirements for a valid will to guide you.

What types of wills are there in South Africa?

  1. A simple will
    This would mean that the deceased has passed testate i.e. you leave a valid will upon your death and your estate is divided and administered according to your wishes.
    A simple will is what is commonly referred to as a “will” and is what we have discussed above (in broad terms). With your will you can, as discussed, decide who will receive your assets, you can appoint an executor and you can name a guardian for any minor children.
  2. Testamentary trust will
    This kind of will places assets into a trust for the benefit of beneficiaries and names a trustee to administer the trust. This type of will is often used if beneficiaries of the deceased estate are minors or in alternative cases where beneficiaries are unable to manage or handle the assets they inherit on their own. With a testamentary trust will, you can put your assets in a trust and place conditions on the inheritance (they may or may not be gradual based on age or other minor factors).
  3. Joint will
    A joint will is signed by two or more people as a separate will for each testator. Generally, a joint will is executed by spouses in favour of the other spouse who inherits everything. The terms of joint wills, including executor, beneficiaries and other provisions, cannot be changed even after the death of one of the testators. Because of this inflexibility, joint wills can become problematic for the surviving spouse (people and their wishes sometimes change – so be cautious with this type of will).
  4. A living will
    A living will does not set out how your estate should be distributed following your passing. It is a document that is used while you are still alive to provide guidance to your family and medical doctor regarding end-of-life medical care and treatment. Through a living will, you can request that certain medical treatment aimed at prolonging your life be withheld in circumstances where there is no hope of your survival, such as if you are in an irreversible vegetative state with no hope of recovery. In addition, your living will can also be used to express your desire not to be resuscitated, identify the forms of medical intervention you would be comfortable with at end-of-life, and for organ and tissue donation.
    Important to remember – a living will is totally separate from your last will and testament (the so-called “simple” will) and serves a completely different purpose. Once drafted, your living will can be a valuable guide for your family and treating doctors who may find themselves having to make difficult decisions regarding your medical care if you are unable to speak for yourself.
  5. A digital willWhilst this is not something generally (and historically) covered during normal will discussions – it is a relatively new concept – it is something that has certainly come to the fore in recent times. Why? Well, most of us have a large digital presence and dependency (to some extent) on technology. Our social profiles cover a large platform, for example online banking, shopping platforms, social platforms and even business platforms. By drafting a digital will, you can help your loved ones shut down your digital presence after you have passed away in a safe and secure way (and in accordance with your wishes). In a nutshell, a digital will is a complete list of all your devices, online profiles, login credentials, email addresses, passwords and subscriptions, together with a set of instructions as to what should happen to them in the event of your death.

What if I don’t have a will?
If you fail to draft a valid will, you will have passed intestate (literally meaning without a valid will) – which means there is no valid will to direct your executor as to what you want to go to who. And that’s a shame.

In this instance, your assets will be distributed in accordance with Section 1(1) of the Intestate Succession Act 81 of 1987, either wholly or in part as follows –

  • if survived by a spouse, but not by a child, the spouse shall inherit the entire intestate estate;
  • if survived by a child, but not by a spouse, the child shall inherit the entire intestate estate;
  • if survived by a spouse as well as a child, then the souse will inherit the child’s share of the intestate estate (until they come of age);
  • if not survived by a spouse or a child, but by both parents, the parents will inherit the intestate estate in equal shares. If only one parent is alive, then the surviving parent will inherit one half of the intestate estate and the children of the deceased parent (i.e. siblings of the deceased) the other half. If there are no siblings from the deceased parent, the surviving parent shall inherit the entire intestate estate.

Are South African wills different from other countries?
In short, yes.

As we have already covered, South Africa has what is known as freedom of testation, which essentially boils down to “the right of an individual to dispose of his or her property on death as he or she pleases”.

Other countries (instead), have what is called “forced heirship” rules. This essentially, means that heirship rules apply which legally prescribe how the assets must be treated on death – the estate of a deceased is separated into an indefeasible portion (the forced estate passing to the deceased’s next-of-kin) and a discretionary portion (or free estate, to be freely disposed of by will). Forced heirship is generally a feature of civil-law legal systems which do not recognise total freedom of testation.

Mostly prevalent among civil law jurisdictions, including Mauritius, Switzerland, Spain, France, Japan and Portugal, as well as countries operating under Shariah law (to name but a few). Each country’s forced heirship rules are unique, and it is always advisable to consult with a local expert in that country.

As is no doubt evident – forced heirship poses an important conflict between that and a South African’s rights to freely dispose of their assets as they deem fit. Therefore, while some countries will recognise a will drafted in South Africa, other countries’ legislation may deem a South African-drafted will to be invalid.

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