The Procedure to Execute a Will in South Africa
What an executor Cannot do in South Africa?
An executor must be impartial. Neither he/she, nor his/her family, friends, may benefit unfairly (for example from the sale of an asset). He/She must carry out the instructions in the will, as well as reasonable instructions of the heirs. Quarrels with heirs should not interfere with his or her duties.
Who can execute a valid will?
A person must be over the age of 16 (sixteen) years. The Will must be in writing. This means that a Will can by typed or handwritten. If the Will is handwritten, it must be remembered that the person who writes the Will is not allowed to be mentioned as a beneficiary in that specific Will.
What makes a will invalid in South Africa?
Grounds of invalidity and failure of a will
The freedom of a testator to dispose of the whole or any part of his estate as he pleases is not absolute and there are several instances under which a will may be invalid in whole or in part from the moment of its execution or fail, in whole or in part when his estate is wound up. Testators and drafters of the will should bear these in mind when a will is executed or if the circumstances of the testator subsequently change.
A valid will fails and or is a limitation on a testator’s freedom of testation to the extent that:
(a) a beneficiary is incapable of taking a benefit under it (for example being an unworthy person who intentionally or recklessly caused the testator’s death; being the writer of the will – unless the writer confirms the disposition after the will is executed; witnesses and signatories and their respective spouses – unless the will has been attested to by two other competent witnesses who will not receive a benefit; and witnesses nominated as an executor, administrator, trustee or guardian. Issues around previous spouses inheriting if the testator dies within three months of their divorce can also be a factor.
(b) a disposition contained in it is a nudum praeceptum (unenforceable promise), illegal, against public policy (for example a condition which aims to break-up a marriage or is discriminatory), impossible, uncertain or subject to an unfulfilled condition.
(c) the maintenance and education of the testator’s minor children has not been provided for adequately.
(d) the maintenance of the testator’s surviving spouse has not been provided for adequately.
(e) a surviving spouse may have a claim against the estate as a result of being married out of community of property with the accrual system.
(f) the will is in breach of limitations placed on fideicommissary dispositions under the Immovable Property (Removal or Modification of Restrictions) Act, 94 of 1965.
(g) the testator revokes it before his death (for example in a subsequent will or codicil, by implication, or by complete or partial destruction).
(h) a beneficiary does not adiate (accept the inheritance).
Who can assist you in drafting a will in South Africa?
In South Africa, you can get assistance from attorneys, banks, chartered accountants, boards of executors, insurance companies, trust companies and various individuals who have the necessary qualifications.
You can, however, draft your own will as well, but you need to make sure that it complies with all the relevant formalities to be accepted as a valid will.
Who is competent to act as a witness to a will in South Africa?
In South Africa, all persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law. A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. There are some exceptions to this rule. Consult your legal representative for more information in this regard.
