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Has your last Will and Testament been prepared?

Has your last Will and Testament been prepared?

Arisha Rajaram

What is a Will?

A Will, also known as a Testament is a legal record where a person (testator) expresses their wishes as to how their property is to be distributed after their death, as well as other provisions which may be important to the testator.

This document would include confirmation from the testator of the names of persons who their estate would be distributed to, as well as the name of an executor, who would manage the estate until its final distribution.

There are various types of Wills which may be drafted to ensure that a testator’s wishes are satisfied.

Why is a Will important?

A Will is important in order to ensure that the assets of the testator are distributed to the testators chosen beneficiaries, and clearly notes the testator’s preference. It also limits family disputes after death, as there is a clear indication of what the testator wants, which give the family and the testator peace of mind.

Where there are minor children involved, the Will would also set out who the testator chooses as the guardian of the children after death. This is important, otherwise the state would have the duty of appointing a guardian for the children, and this may be somebody a testator would not ordinarily have chosen.

In the event that the testator passes away and there are minor children involved who would not be able to handle their finances, the Will can make provision for special clauses within to assist the minor children until such time as they are capable to handle their affairs. For example, a trust can be created to hold the funds until the children reaching a certain age.

What happens if there is no Will?

Where there is no Will that has been drafted and signed, upon death of a person, that persons estate would be distributed in terms of South African Law. Without a Will, a person is said to have passed on intestate, and South African Law would determine who the estate would be distributed to.

This can be a complicated task for the family of the deceased and doesn’t necessarily mean that the deceased estate would be distributed to persons the deceased may have chosen. For example, in terms of legislation, the estate may be given to close family, but the deceased may have wanted a portion to be given to a close friend.

Legal requirements of a Will

The Wills Act 7 of 1953 (Wills Act) regulates the drafting of Wills. In terms of the Wills Act, the requirements for a valid Will are as follows:

  • A person must be over the age of 16 years to make a Will.
  • The Will must be in writing.
  • Each page of the Will, including the last page, must be signed by the testator.
  • The Will must also be signed by two competent witnesses, over the age of 14 (fourteen) years.

For more information on the different types of Wills and/or to have your Will drafted, contact Rajaram Mvulane Attorneys at or on 071 872 8797

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