Why You Need a Valid Will — and What Happens Without One

A will is the only document in which you decide who inherits your estate, who administers it, and who should care for your minor children when you are gone. Without one, those decisions are made for you — by a statute that has never met your family. As a Pretoria firm involved in estate planning and the administration of deceased estates, we see first-hand how much delay, cost and conflict a properly drafted will prevents, and how much damage a defective or outdated one can cause.

What happens if you die without a will?

If you die without a valid will, your estate does not pass to the State, as many people fear — but it does pass according to the rigid formula in the Intestate Succession Act 81 of 1987. In broad terms, the Act works like this:

• If you leave a spouse but no descendants, your spouse inherits everything.
• If you leave descendants but no spouse, your children inherit in equal shares, with the children of a predeceased child stepping into their parent's place.
• If you leave both a spouse and descendants, your spouse inherits a child's share or R250 000 (the amount currently fixed by the Minister), whichever is greater, and your descendants inherit the balance.
• If you leave neither spouse nor descendants, the estate passes to your parents, then to their descendants (your siblings), and failing them to your nearest blood relatives.

A child's share is calculated by dividing the estate by the number of children (counting predeceased children who left descendants) plus one. So if you leave a spouse, two children and an estate of R900 000, your spouse receives R300 000 and each child R300 000 — whether or not that division makes any practical sense for your family, your business or the home your spouse still lives in.

The Constitutional Court has softened one of the Act's harshest edges: in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51; 2022 (3) SA 250 (CC) it held that excluding the surviving partner of a permanent life partnership, in which the partners had undertaken reciprocal duties of support, from intestate inheritance was unconstitutional. That protection is welcome, but it is no substitute for planning: a surviving partner may still have to prove the existence and nature of the partnership, sometimes against hostile family members. A will removes that uncertainty entirely.

Freedom of testation: your estate, your choice

South African law strongly protects freedom of testation. Within a handful of limits, you may leave your assets to whomever you choose — family, friends, a charity, a trust. The main qualifications are that a surviving spouse may claim reasonable maintenance from the estate under the Maintenance of Surviving Spouses Act 27 of 1990 if the will leaves them unable to support themselves, and that your minor children retain their claim for maintenance against your estate regardless of what the will says. A bequest that is unlawful or against public policy can also be struck down. Beyond that, the choice is yours — but only if you exercise it in a valid will.

The formalities of a valid will

The Wills Act 7 of 1953 governs how a will must be executed. Anyone aged 16 or older may make a will, provided they are mentally capable of appreciating the nature and effect of what they are doing. The core formalities in section 2(1)(a) are strict:

1. The will must be signed at the end by the testator, or by another person at the testator's direction and in their presence.
2. The testator must sign (or acknowledge the signature) in the presence of two or more competent witnesses present at the same time. A competent witness is anyone aged 14 or older who may give evidence in court.
3. The witnesses must attest and sign the will in the presence of the testator.
4. If the will runs to more than one page, the testator must sign every page, not only the last.
5. If the testator signs with a mark (such as a thumbprint), or someone signs on the testator's behalf, a commissioner of oaths must certify the will in the prescribed manner.

A court does have the power, under section 2(3) of the Act, to order the Master to accept a document that does not comply with these formalities if it is satisfied the deceased intended it to be their will. But that requires a High Court application — slow, expensive and uncertain litigation that a properly executed will makes unnecessary.

Your will and your minor children

For parents, a will does two things no other document can. First, it allows you to nominate a guardian to care for your minor children if both parents die — guidance a court will take seriously when the unthinkable happens. Second, it lets you create a testamentary trust so that any inheritance due to a minor is managed by trustees you have chosen, on terms you have set. Without such a trust, money inherited by a minor may have to be paid into the Guardian's Fund administered by the Master of the High Court, where it is held until the child reaches majority — safe, but inflexible and administratively slow for the surviving family.

Common mistakes that undermine a will

In practice, these are the errors we encounter most often:

• A beneficiary signs as a witness. Under section 4A of the Wills Act, a person who witnesses a will (or writes it out) is generally disqualified from inheriting under it, subject to limited exceptions. The will may stand, but the gift to that person can fail.
• Not every page is signed, or the witnesses sign later, alone, or in the testator's absence.
• DIY and template wills with vague wording — unclear substitution provisions, assets that no longer exist, or clauses that contradict each other.
• An outdated will after divorce. The Wills Act gives a short grace period: if you die within three months of your divorce, a bequest to your former spouse is treated as if they had died before you. Survive longer than that without amending your will, and your ex-spouse can still inherit.
• No executor, or an unsuitable one, forcing the Master and family to make appointments under pressure.
• A missing original. The Master requires the original signed will; a will nobody can find helps nobody.

When did you last review yours?

A will is not a once-off document. Marriage, divorce, the birth of children, the purchase of property and the growth of a business should each prompt a review. Drafting or updating a will is quick and inexpensive compared with the consequences of dying without one — and it is one of the most caring things you can do for the people you leave behind. If your will is more than a few years old, or you have never signed one, contact us to put it right.