How to write a will

Many people underestimate the importance of having a valid and up to date legal will. When you die, your estate is divided between your family or the people that you want to inherit from you. The estate consists of your personal property and possessions, as well as any money or other assets owned by you. 

Who your property is passed on to depends on whether you have a valid will or not.

If you have a valid will then the property is divided according to your wishes. If you die without a will (called intestate), then your property will be divided up amongst your immediate family according to the laws of intestate succession.

Protect your family by having a valid will in place 

If you’re older than 16 and mentally competent, you can make a will stating who you want your property to go to when you die. 

For a will to be valid, you must make sure that:

• The will is in writing.
• Two people older than 14 years of age witness the making of the will (these witnesses can’t be beneficiaries of the will).
• You’ve initialled every page of the will and signed the last page, in the presence of the witnesses.
• The witnesses have initialled and signed the will.

In your will you can:

• appoint an executor, and
• divide up your property.

An executor is a person who’ll make sure that your property and assets are divided according to your wishes. The executor also evaluates the estate and its debts, settles your outstanding debts and distributes or invests the remainder of the estate as set out in your will. If you don't choose an executor, the court will appoint someone to be the executor - this is usually a family member.
 
If you’re not sure how to draw up a will, you can get a lawyer to help you. You can get an easy-to-complete will form from a stationery shop.

Before you go to an attorney to create a will, you’ll need to think carefully about:

• Who must get what?
• Who should be the legal guardian of your minor children (younger than 16 years old)?
• What do you want to happen to your body once you’ve died?
• Who should be the executor of your will? This could be your attorney or a close family member or friend.

Note: If you decide on a family member or friend, it’s advisable also to nominate the attorney as co-executor as the attorney will deal with any legal issues.

Divorce and your will

It’s important to amend your existing will within 3 months of your divorce unless you want your former spouse to inherit. If you don’t change your will after your divorce, your former spouse will inherit according to your existing will.

Why should an attorney draft your will?

Often a will isn’t valid because the person who drafts it doesn’t have the necessary legal knowledge to ensure that all the legal requirements of the Wills Act are met. A practising attorney has the necessary knowledge and expertise to ensure that your will is valid. Your will needs to comply with all the legal requirements in the Wills Act and with your wishes. An attorney can also advise you on any problem which may arise with your will and assist your executor. 

What makes a will valid?
 
For your will to be valid it needs to be drawn up correctly.

You’ll need to be 16 years or older and make sure that:

• You’re mentally competent and that you understand the consequences of creating a will.
• The will is in writing.
• Two people older than 14 years of age witness the making of the will (these witnesses can’t be beneficiaries of the will).
• You have initialled every page of the will and signed the last page, in the presence of the witnesses.
• The witnesses have initialled and signed the will.

Need help drafting a will? Get tips and legal guidance on how to make a start. 

Dying without a will

If you don't have a valid will when you die, your property is divided according to the provisions set out by the law in terms of the Intestate Succession Act. These provisions are generally fair and ensure your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationships.

Some problems may arise if you die without leaving a will.

This can include:

• Your assets not being left to the person of your choice.
• It can take longer to have an executor appointed.
• The executor who’s appointed may be somebody you may not have chosen.
• There could be extra and unnecessary costs.
• There could be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets.

Make a file 

Keep your will in a file or folder along with other documents that might make it easier for the people you leave behind.

This could include:

• a list of your investments,
• a list of your assets,
• contact details of the executor dealing with your will, and
• a letter of wishes could be included in the file which explains to your heirs why you bequeathed certain items to certain people or how you wish them to use their inheritance.

Note: this isn’t a binding legal document, but it explains why you put something in the will.

Make sure that you store all documents in a safe place like a bank or a secure safe at your house. 

National Wills Week 2019

The Law Society of South Africa is hosting its National Wills Week from 16 to 20 September 2019. If you don't have a will in place or simply can't afford a lawyer, National Wills Week offers you an opportunity to have a will drafted for free.

You can book an appointment with a participating lawyer nearest to you.

If you have an appointment with an attorney during National Wills Week, please take the following with you:

• Your identity document (ID) and your spouse’s ID if you have a joint will.
• A list of what you own and who must get it (including specific personal items that you intend leaving to specific people).