Dealing With Wills Within The South African Legal System

By Naledi Mokoena

When it comes to wills, the South African legal system is comprehensive and adheres to applicable laws – therefore seeking appropriate legal advice to make and execute wills is a prerequisite, especially if there are complex family relationships. Here is what you need to know:

What Is The Difference Between Wills and Estate Planning

According to Old Mutual writing a will refers to documented instructions on how you want your assets to be distributed amongst family members in the event of your death. It can be written or typed to avoid unnecessary confusion regarding your assets. On the other hand, estate planning is creating a plan for the assets you own and still owe. It goes into greater detail regarding the value of property, jewellery, investments and cars. In the case of debt, estate planning ensures there’s enough liquidity to remunerate those debts which may include estate duty, capital gains tax and other expenses. It is advisable to ensure you have the funds to settle all your debts, to avoid leaving others to repay what you owe.

According to the South African Intestate Succession Act 81 of 1987, if you pass away without leaving a valid will, your estate will decline in value and the estate will be divided amongst surviving children, siblings or a spouse in line with a set formula.


Advantages of Having A Will According to Legal Leaders:

  • You are at liberty to create a trust to ensure your assets are taken care of
  • You can choose your executors
  • Finalising your estate is more faster and efficient
  • You as have complete control over your estate and who receives it
  • Your have the authority to create conditions before dependants inherit it

Disadvantages of Not Having A Will According To Legal Wise

  • The deceased estate will be forfeited to the state within 30 days if no heir comes to claim the funds
  • The children of the deceased might be placed under the guardianship of someone the deceased did not trust, in the event both parents are deceased
  • The deceased’s wishes might not be executed due to no existing directive
  • An unmarried partner whom the deceased cohabited with, will not be recognised as a spouse and will not inherit from the deceased estate under intestate law
  • When the deceased fails to update his or her will to reflect current relationships, whomever they are no longer in a relationship with may inherit from the deceased estate
  • The deceased might have wanted their children to receive their inheritance when they teach a particular age. However if there’s no will, they can be paid out if the child is 18 years or older
Why Should An Attorney Draft Your Will and Not You?

It is possible to draft your own will, however it’s advisable to enlist the assistance of a legal practitioner to avoid making expensive mistakes. According to the Law Society an attorney is a qualified professional who has the expertise to identify any existing or potential problem regarding your estate. Legal practitioners are mandated to ensure your will is valid and is an extension of your wishes and will ensure you have all the necessary legal documents taken care of before your will comes into effect considering the strict South African legal system.

According To The Legal Wise These Are The Legal Requirements of Legal:

  • An individual must be over the age of 16 years
  • The will must be typed or handwritten for it to be valid. The individual who hand writes the will must ensure they are not listed as beneficiary.
  • The will must be signed by two separate qualified witnesses on each page, including the last page must be signed by the testator. A person will qualify to be a competent witness if they are 14 years or older.

Source: COGTA | IOL | News24 | SA Gov

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