Many South Africans believe that making a Will means visiting a lawyer and paying a fortune. While those with large or complicated estates may need lawyers or financial advisors, most people don’t. While lawyers can offer advice, most South Africans can draft their own Wills without any legal help.
When you pay a lawyer to draft your Will, you pay for their experience not the complexity of the document. This leads to confusion when clients get a few pages and a big bill.
A Will is a legal document that outlines how you want your estate – everything you own and owe – to be managed after you die.
In South Africa you can write your own Will. You don’t need a lawyer or notary for it to be valid. Online services like LegalWills.co.za allow you to create a Will at a fraction of the cost of a traditional Will. You answer a few questions and the service generates a document for you to sign and your Will is legally binding.
What Makes a Will Legal in South Africa?
To be valid a Will in South Africa must meet the following conditions:
- Age: The testator (person making the Will) must be at least 16 years old. This age ensures the individual is deemed capable of making informed decisions about their estate.
- Testamentary Capacity: The testator must have the mental ability to make a Will, meaning they must understand what the Will is and what it means.
- Witnesses: The Will must be signed at the end by the testator in the presence of two competent witnesses. These witnesses must be at least 14 years old and not beneficiaries or their spouses. If a beneficiary witnesses the Will, gifts to them may be invalid.
LegalWills.co.za takes you through the process so you can draft your Will without any legal expertise. Once done you can print and sign it with witnesses and it’s legally binding in South Africa.
Testamentary Capacity
Testamentary capacity is the foundation of a valid Will. Before making a Will the individual must:
- Understand the Nature of the Will: The person must understand what a Will is and what’s in it.
- Know Their Property and Assets: The testator must know what they own.
- Understand Bequests: You must understand what you are leaving to beneficiaries.
- Identify Beneficiaries: You should recall who you want to include in your Will.
- Exclusions: You must acknowledge the consequences of not including someone in the Will, whether intentional or not.
Review your Will carefully to make sure it’s what you intended. LegalWills.co.za allows unlimited changes as long as you’re a member so changes are always possible.
How to Sign Your Will
Once you’ve completed your Will with LegalWills.co.za you must follow the signing procedure:
- Presence: The Will must be signed in front of two adult witnesses. They must also sign to confirm they witnessed your signature. You must sign before the witnesses do.
- Order: The testator must sign first, then each witness.
- Privacy: Witnesses don’t need to know what’s in the Will. They only need to witness the signing.
- Physical Presence: Everyone must be present to complete the process. This ensures everyone is in agreement.
Remote Signings
South African law does not currently recognize remote witnessing of Wills. This means all parties must be physically present to witness the signing. This is to prevent misunderstandings and fraud that can occur with remote communication.
Validity of Witnesses
The validity of witnesses is another important aspect of making a Will:
- Age and Competence: Witnesses must be at least 14 years old. They must understand what it means to witness a Will.
- Impartiality: Witnesses must not be beneficiaries or their spouses. If a beneficiary or their spouse witnesses the Will, gifts to them may be invalid.
- Independent Witnesses: Choose friends or colleagues who have no interest in what’s in the Will.
Affidavit of Execution
While not compulsory, an “Affidavit of Execution” is useful for the probate process. This affidavit, signed by witnesses in front of a legal professional, confirms the witnessing process was done correctly with no disputes.
LegalWills.co.za has a free template for this affidavit. Although not necessary for the Will to be valid, it’s worth considering if there’s any doubt about the testator’s capacity or undue influence during signing.
Key Points for a South African Will
When you make your Will, consider:
- Clarity and Specificity: Be specific in your instructions to avoid confusion. State who gets what and include full names to avoid mistakes.
- Alternate Beneficiaries: Consider naming alternate beneficiaries if the primary one can’t inherit. This avoids complications if circumstances change.
- Guardianship: If you have minor children, appointing a guardian is essential. Clearly state who should look after them if you’re not around.
- Funeral Arrangements: While not compulsory, some people include funeral wishes in their Will. Make sure these instructions are detailed so your loved ones know what to do.
Update Your Will
Life changes and so should your Will. Update your Will to reflect:
- New Assets: Add new assets or remove those you’ve sold.
- Family Changes: Births, deaths, marriages or divorces may change your wishes.
- Beneficiary Changes: Adjust if your relationships with beneficiaries change.
Make Your Will Today
For most South Africans, making a valid and binding Will doesn’t have to be expensive or involve lawyers. LegalWills.co.za offers a simple way to make your Will in about 30 minutes, from R499. The service asks you straightforward questions in plain language, no legal jargon, and lets you complete and print your Will at your convenience.
For more information and support, visit LegalWills.co.za.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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