A Guide to Drafting and Planning a Will and Testament | Legal Articles

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A Guide to Drafting and Planning a Will and Testament

When drafting a Will in South Africa, it is vital that it meets all of the requirements set out by the Will Act 7 of 1953 (“The Act”).

The formalities are set out in section 2 of the Act:

  1. The Will must be signed by the testator at the end of the Will. If the Will consists of more than one page, each page other than the last must be signed by the testator – this can be done anywhere on the page.
  2. The testator must sign the Will in the presence of two or more competent witnesses. A competent witness must be over the age of 14 and must be deemed competent to give evidence in a court of law.
  3. The witnesses must attest and sign the Will in the presence of the testator as well as each other.
  4. If the testator cannot make a proper signature, the testator is allowed to sign by the making of a mark. However, a Commissioner of Oaths needs to confirm and approve this.

Last Will and Testament

What to include in your Will and Testament

When planning a will, ensure that the following is expressly included:

  • Revocation clause

This clause revokes all previous Wills of the testator and gives indication that the current Will is the last Will of the testator.

  • Appointment of executor

In your Will you need to appoint an executor who will execute your wishes as stipulated in your will.

  • Appointment of heirs

Ensure that you expressly stipulate your heirs to ensure clarity when it comes to the inheritance upon your death. Further, in the case that your heirs are minors at the time of your death, that provision is made as to what should happen to the benefit until the minor heirs reach the age of majority.

  • Exclusion of community of property and accrual

This clause excludes any benefit received by heirs from their matrimonial property system if they are married or marry any time in the future. The benefit received by the heirs will belong to the heirs personally and not form part of any community or accrual.

  • Estate duty

It is important to include an estate duty clause in your will to ensure that the estate duty which may become payable, whether such duty be assessed on the property of the estate or property which the law deems to be property at the date of your death, that the estate be liable for such duty and not the heirs.

  • Guardians

In this clause, you will nominate a guardian in the case where you have minor children. In the event that both you and the minor/s other natural parent dies, this clause will indicate who you nominate to be the guardian of your minor children.

  • Burial wishes

This is an optional clause which you can include in your will if you have any specific wishes for your burial.

Bailey Haynes Inc. – Attorneys Cape Town

Having a Last Will and Testament is critical. Not only does it ensure that your estate is divided according to your wishes – it also ensures that your family is cared for after your death.

Contact our law firm in Cape Town – we will gladly and professionally assist you with the drafting of your Will.


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