Part 2 with Masi Ncube from ProBono.org legal expert, during National Will Week.
Planning for the future isn't just about saving money or
building assets it's about ensuring your loved ones are protected and your
wishes are honoured when you're no longer here. Yet despite its importance,
many South Africans still don't have wills. During National Will Week (September
15-19), legal expert Masi Ncube from ProBono.org shared crucial insights about
wills that every South African should understand.
A will is a legal document that expresses your wishes for
how your assets should be distributed after you die. It operates on the
principle of "freedom of testation," which means you have the right
to choose how your estate is distributed. This powerful legal tool allows you
to control your legacy and provide for those you care about most.
When someone dies without a will a situation called
"intestate succession" their assets are distributed according to
predetermined legal formulas rather than personal wishes. Contrary to popular
belief, your assets don't automatically go to the state. Instead, they're
distributed to your spouse, children, or other relatives according to specific
calculations.
If you're married: Your spouse automatically inherits half
of your estate if you were married in community of property. The remainder is
divided according to the Intestate Succession Act, with your surviving spouse
inheriting either R250,000 or a child's share (whichever is greater).
If you're unmarried: Your children inherit equally. If you
have no children, your parents inherit. If your parents have passed away, your
siblings inherit. If no siblings exist, your closest relatives inherit.
If no relatives can be found: Your estate sits with the
Guardian's Fund for up to 30 years while they search for potential heirs.
Can a Will Be Contested?
Unfortunately, yes. Wills can be challenged on several
grounds:
1. Forgery
Someone alleges that the person supposed to sign the will
didn't actually sign it, or that the document was fraudulently created.
2. Undue Influence
This occurs when someone claims that the testator (the
person making the will) was pressured or manipulated into making decisions that
don't reflect their true wishes.
3. Mental Incapacity
This applies when the testator didn't understand what they
were signing or the significance of their decisions. This could be relevant in
cases involving Alzheimer's, dementia, or other cognitive impairments.
4. Constitutional and Public Policy Violations
Wills cannot contain provisions that violate constitutional
rights or public policy. For example, you can't leave property to someone only
if they convert to a specific religion or only if they get married, as this
would violate their fundamental freedoms.
Challenging a will is expensive and requires going to the
High Court with legal representation it's not a quick or cheap process.
Essential Will Requirements: What Makes It Valid?
Witnesses and Formalities
Your will must be signed by two witnesses
Every single page must be initialled by both you and the
witnesses
The original will is crucial copies are rarely accepted by
the Master's Office without a court order
You do NOT register a will while you're alive. This is one
of the biggest misconceptions people have. The will is only submitted to the
Master's Office after you pass away, when someone reports your deceased estate.
While you can technically draft a will yourself (blank will
forms are available at stores like CNA), legal experts strongly recommend
having a lawyer draft it. The formalities are complex, and mistakes can
invalidate your entire will.
Life changes, and your will should reflect those changes. Consider
updating your will when:
Relationships change: Marriage, divorce, or the end of a
long-term partnership
Children are born or circumstances change: Including new
children or if existing children's circumstances change significantly
Major assets are acquired: New property, significant
investments, or inheritance
Beneficiaries' circumstances change: If someone you intended
to benefit goes down the wrong path or if your relationship with them changes
Don't wait until you're declining mentally or physically, update
your will while you're of sound mind and body.
If you're in a long-term relationship but not married, your
partner has no automatic inheritance rights under intestate succession.
However, your will can provide for them through freedom of testation.
If you want your partner to potentially claim maintenance
from your estate, document your relationship thoroughly:
Create written agreements showing your life partners
Keep records of shared expenses
Obtain affidavits from family members confirming your
relationship
Maintain evidence of your shared life together
What People Think vs. What They Do
When asked about the importance of having a will, most
people acknowledge its significance. They understand it helps secure their
family's future and provides peace of mind. However, many of the same people
who recognize its importance don't actually have wills themselves.
Common barriers
include:
Believing it's too expensive or inaccessible
Thinking you need significant assets to justify having a
will
Superstitious beliefs that discussing death invites it
Simply procrastinating on what feels like an uncomfortable
topic
Where to Get Your Will
Drafted
Professional Options:
Law firms: Recommended
but can be expensive
Pro Bono
organizations: Often provide free services during Will Week
Banks: Offer will
services but often insert themselves as executors
Community Resources:
Community Advice
Offices: Provide will drafting services, especially during Will Week
Commission of Oaths
officers: Can assist with basic wills
A Critical Warning
About Executors
Be cautious about who you choose as your executor. Many law
firms and banks automatically insert themselves as executors, which means they
can charge up to 3.5% of your estate's value for administration services, costs
your heirs will bear. Consider appointing a trusted individual instead to save
your beneficiaries money.
Common Will Myths
Debunked
Myth: Writing your wishes on paper and signing it creates a
valid will.
Reality: This is NOT a valid will. Proper formalities must
be followed, including witnesses and specific signing procedures.
Myth: You must register your will while alive.
Reality: Wills are only submitted to the Master's Office
after death when the deceased estate is reported.
Myth: Living wills are the same as regular wills.
Reality: Living wills deal with medical wishes and aren't
fully recognized in South African law. Your asset distribution will must be a
separate, proper last will and testament.
Assess your situation: Do you have dependents, assets, or
specific wishes for your estate?
Research your options: Look into free will services during
Will Week or reputable law firms
Gather your thoughts: Decide who should inherit what and who
should serve as your executor
Consider guardianship: If you have minor children, decide
who should care for them
Think about burial wishes: Include preferences for cremation
or burial
Get professional help: Despite the cost, having a lawyer
draft your will can save significant problems later
The Bottom Line
Having a will isn't about inviting death into your life it's
about showing love and consideration for those you'll leave behind. It's about
taking control of your legacy and ensuring your hard-earned assets benefit the
people you choose, not distant relatives determined by legal formulas.
During National Will Week and beyond, take advantage of the
resources available. Your future self and your loved ones will thank you for
taking this crucial step toward securing their future.
Remember: The best time to create a will was yesterday. The
second-best time is today.
For free will services and legal advice, contact Pro
Bono.org or visit your local Community Advice Office. Don't let another
National Will Week pass without taking action.
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