What is a Last Will and Testament?

What is a Last Will and Testament? A will is a written document which records a person’s last wishes with regards to his property. While we are alive we have the power to direct how we wish our estate to devolve upon our demise. For all intents and purposes we record our instructions and last wishes in a Will. Under South African law every person has the right to freedom of testation, this means we can pretty much do with our property as we wish. There are however a few points to consider when drafting your Will.

Your Will should at the very least prescribe who the beneficiaries of the estate are and who the executor is. The beneficiaries are those persons nominated to benefit from your estate. The executor is the person who has the responsibility of administering your estate. The nominated executor is usually a family member or the surviving spouse of the deceased. The executor does not have freedom to do whatever he wants to with the property of the deceased. The responsibility of the executor is only to ensure that the estate is distributed in accordance with the correct legal procedures to the beneficiaries.

Even if you have a Will which states how your property must be distributed, the estate must still be reported to the Master of the High Court. The Master of the High Court has ultimate jurisdiction over the administration of an estate and will issue Letters of Executorship authorising a person to act as an executor. The Master will require that a nominated executor who is not qualified to be assisted by a suitably qualified person, such as an attorney.

A Will must comply with the formalities prescribed by the Wills Act 7 of 1983. First, the Will must be in writing and signed at the end thereof by the testator. Secondly, the Will must be signed in the presence of at least two competent witnesses, who must themselves attest the Will in the presence of the testator. Thirdly, the testator must sign every other page of the Will in the presence of the witnesses. It is important to note that the persons signing the will as witnesses cannot be a beneficiary in terms of the will or the nominated executor.

Under South African law every person has the right to freedom of testation

Once the Will has been executed in accordance with these provisions it is very important to keep the original in a safe place. When the time comes, the Master will require original Will to be submitted.

At Siyatec Executors, we can assist you with the drafting of your Will. You can make contact with us by sending us a WhatsApp.

Author Wafiq Davids (B SocSci, LL.B.)
Attorney, Notary, Conveyancer and Legal Consultant at Siyatec Executors

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