Drafting of Wills


Anyone older than 16 years old, unless you cannot understand the meaning and effect of a Will.

What is needed to draft your Will?

  • Name and ID number of the executor of your estate
  • Name and ID number of your spouse
  • How you are married? (IN Community of Property; OUT of Community of Property with the accrual system or OUT of Community of Property without the accrual system)
  • Copy of marriage certificate
  • If you are divorced – a copy of your decree of divorce / settlement.
  • Full names and ID number of all the children and other persons you want to benefit from your Will
  • In the case of minor children (children younger than 18 years old: Names and ID numbers of the guardians of the minor children
  • Details of all assets, liabilities and insurance policies etc.

How can you make a valid Will?

Thabo wants to make a will

Thabo makes a Will where he decides to leave his house to his wife, (Magdalene) after his death.  Thabo also decides to leave his car to his grandson, (Sipho).  Thabo wants his money to be given to his son (Eric).  Thabo has R5 000 in his bank account.  BUT Thabo owes ABC Clothing Store R2 500.

For Thabo’s Will to be valid, it must:

  • Be in writing (handwritten, typed or printed)
  • Be signed by Thabo at the end of the Will
  • Be signed in the presence of two or more witnesses
  • If the Will has more than one page, each page must be signed

What happens if Thabo can’t sign his own name?

Sign    = Signature
            = Initials
            = Thumbprint
            = Mark (X)

If Thabo can’t sign his Will, someone else may sign for him, if:

  • He tells them to do so
  • that person signs the Will in front of Thabo
  • that person signs the Will in front of a Commissioner of Oaths who must make sure that Thabo wants this Will to be his
  • every page must be signed

 What is a codicil?

A codicil is an extra document to change (amend or supplement) your Will.  The codicil must comply with the same formalities as that of a Will.  When amending a Will, the same witnesses who signed the original Will need not sign the codicil

Who can be a witness? 

Anyone older than 14 years old, if they competent to testify in a court of law can be a witness.

It is best if the person nominated as Executor (or his/her spouse) or who is to derive an inheritance (or his or her spouse) does not sign as a witness to the Will.  (Having regard to sections 4 and 4A of the Wills Act)

Magdalene can be a witness in Thabo’s Will and receive the house, only if there are 2 other witnesses not getting anything from Thabo’s deceased estate.

Must Thabo amend his will after divorce?

 If you have an existing Will it is important to amend your Will within 3 months of your divorce, unless you want your divorce spouse to inherit.  If you fail to amend your Will your divorced spouse will inherit in terms of the existing Will.

What happens if Thabo does not leave a Will?

If you die without leaving a Will or a valid Will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987).  In that case someone whom Thabo wanted to exclude from his Will may inherit in terms of the Intestate Laws.

Tips*:

  • Get all the necessary information and documentation needed
  • Make a list of all your assets and liabilities (debts)
  • Decide how you want to divide your assets after all your debts have been paid
  • Seek professional assistance to draft your Will / Draft your Will
  • Sign your Will in the presence of 2 / more competent witnesses
  • Store your Will in a safe and dry place.

 

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