It is never easy to talk about death – a topic that is often taboo in many households – as we avoid “calling” death or even thinking about it. However, when you are gone, those left behind must not only learn how to negotiate with life without you but also with potential hardships if you have not planned properly. These may seem like harsh words, but they reflect a harsh reality.
So, how do you ensure clear instructions about what happens to your belongings after you die? Who gets what? The answer: make sure you have a valid will in place.
What is a valid will?
A will, sometimes called “your testament,” is a document where you set out what should happen to your assets and liabilities (your estate) when you die. It speaks for you when you can no longer speak for yourself, and if done correctly, it is an act of love for your loved ones.
How do we die?
The answer here is not whether you pass away from illness or an accident – I am referring to whether you die testate (with a valid will) or intestate (without a will).
Let us reflect on the pros and cons of each one:
Dying intestate:
| Pros / advantages | Cons / disadvantages |
| Automatic distribution in terms of the Intestate Succession Act | No control over asset distribution |
| No drafting costs | No say in executor appointment |
| Relief from complex decision making | No guardianship nominations |
| Potential family disputes | |
| Unintended beneficiaries | |
| Delays in distribution | |
| Loss of tax and estate planning opportunities |
Dying testate (with a valid will)
| Pros / advantages | Cons / disadvantages |
| Control over asset distribution | Drafting costs, which vary depending on who you use |
| Control over the appointment of a competent executor | Complexity if the will is not properly drafted |
| Care for minor children in accordance with your last wishes | Will may be outdated if not updated regularly |
| Tax and estate planning by qualified expert like a CFP® professional | Risk of contestation, leading to delays and potential legal battles |
| Personal bequests | |
| Avoidance of family disputes | |
| Ability to update your will to reflect change in circumstances | |
| You can rest in peace…. |
Dying intestate gives you control, personalisation, and peace of mind, ensuring your wishes are conducted as you intended. However, it requires careful planning and maintenance.
Dying intestate, though simpler, can lead to unintended consequences, loss of control over asset distribution, and potential family conflict. It is advisable to have a valid will to avoid these complications.
The key formalities for a valid will (according to South African Law)
To ensure your will is valid under the South African Wills Act (Act 7 of 1953), you must follow these key formalities:
- Signature: A will made after 1 January 1954 is only valid if signed at the end by the person making the will (the testator) or by someone in their presence and at their direction.
- Witnesses: The signature must be made or acknowledged by the testator in front of two or more competent witnesses who are present at the same time. The witnesses must also sign the will in the presence of the testator and each other.
- Multiple Pages: If the will has more than one page, each page (except the last) must be signed by the testator and the witnesses.
- Official Certification: If the testator signs using a mark or someone else signs on their behalf, a commissioner of oaths must certify that they have confirmed the testator’s identity and that the will belongs to them. Each page must be signed by this official.
- Amendments: Any changes to the will (deletions, additions, or alterations) must also be signed by the testator and witnessed by two people, in the same manner as the original will.
- Changes Confirmed: If changes are made using a mark or by another person, an official must certify the testator’s identity and confirm the changes.
Who can make a will?
Anyone over the age of 16 can make a will, provided they are mentally capable of understanding the nature and consequences of their actions at the time of drafting the will. If someone claims that the testator was mentally incapable, the burden of proof lies with them.
Some key “No-No’s” when drafting a will
Skipping Signatures:
Your will must be signed at the end by you or someone in your presence. No signature = no valid will.
No Witnesses, No Will:
Two witnesses over the age of 14 must sign in your presence and in each other’s presence. Without this, your will could be invalid.
Beneficiaries Can’t Be Witnesses:
If someone is set to inherit, neither they nor their spouse can function as a witness. Doing so could void their inheritance.
Unapproved Changes:
Any changes to your will must be signed and witnessed like the original. Unofficial scribbles will not count.
Underage or Incapable Testators:
You must be 16 or older and of sound mind when making your will, or it may be contested.
Closing thought
Death – a grim reality, and an even worse one without a valid will. Do not leave your loved ones with unnecessary complications. Proper estate planning is key to ensuring that your assets are distributed according to your wishes, and a certified financial professional can help guide you through the process.
Article created by: Lelané Bezuidenhout, CFP®
Visit www.fpimymoney123.co.za to find a financial professional who can assist you with creating a comprehensive estate plan, ensuring peace of mind for you and your loved ones.
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For more on the Financial Planning Institute of Southern Africa go to www.fpi.co.za.
