How can I make a valid will?

Anyone can make a will as long as they are over the age of 16 and mentally competent.

However, a will must meet the requirements of the Wills Act or it will not be accepted as a valid will by the Master of the High Court.

This means your will must be in writing, you must sign it and witnesses must confirm that you signed it.

You can:

Hand write or print a will;

Use an online will service or a free online will template; or

Have a will drawn up by a fiduciary practitioner.

Ensure your will is valid

There are some requirements you need to meet to ensure your will is valid:

Your will must be in writing – handwritten or printed – recorded voice or video messages do not meet the requirements of the Wills Act.

You must sign every page of your will with a pen.

You must sign on the last page where the will ends.

If you cannot sign, you can still make a will. In such an instance, it would be advisable to seek the assistance of a fiduciary practitioner as there are specific rules that must be met.

You must sign your will in the presence of two witnesses who are over the age of 14 or it can be contested. The witnesses cannot be anyone who will inherit from your will or the spouse of anyone who will inherit. The witnesses should also not be anyone you appoint as an executor of your estate.

The witnesses only need to sign the last page of the will.

It is wise to date your will. If you have made any previous wills, state that your latest one overrides or revokes any earlier ones.

You must be mentally competent – if anyone alleges you are not competent, the onus is on them to prove that you were not competent when you made the will.

The person who writes out your will, as well as his/her spouse, cannot be an heir in your estate.

What to include in your will

Your will is a key tool in estate planning and should include:

Any specific bequests you want to make to any heirs;

Who will inherit the residue of your estate;

Who you appoint as the executor of your estate;

Who you appoint as the guardian of your children should there be no natural guardians for them. The appointment of a guardian will typically only be necessary and valid if both natural guardians have passed away;

The trustees and powers and duties of any testamentary trust established in your will.

Depending on your family circumstances, you should plan for different scenarios. For example:

• If you are single, plan for when you die.
  
  
• If you are married, plan for the death of each partner.
  
  
• If you are married, plan for simultaneous death.
  
  
• If you are married and have children, plan for a situation where the entire family dies.
  
  
• If you live together, plan as above but be sure to make a will or enter into a cohabitation agreement.

Read more: Why do I need a will? And Why do I need an estate plan?

The cost of drawing up a will

If your affairs are very simple you can draw up your own will or use a template at no cost. But be very careful of trying to save costs and creating a will that is not accepted by the Master of the High Court or which will cause delays in the winding up of your estate, as this could be costly for your heirs.

It is wise to seek the assistance of a fiduciary practitioner to assist you with estate planning and drawing up your will. This practitioner will most probably charge you a fee for the work done.

Some fiduciary practitioners might do your will for free on condition that they be appointed as the executor of your estate. They then get remunerated when they administer your estate.

 The prescribed executor's fee is 3.5 percent of the total value of estate assets.

During Wills Week in South Africa in October each year, the Law Society publicises which of its member attorneys will draw up a will for free. The aim of this initiative is to increase the number of wills as very few South Africans have a will. Most fiduciary practitioners also participate in Wills Week. The free service is only applicable for the drafting of a basic will. If you need detailed estate planning, the free Wills Week is not for you.

 
Keeping a will

You can keep your will at home, but it is often safer to have it stored in a safe with the fiduciary practitioner that draws up your will. You can then keep a copy and inform your family where to find your will.

You may be charged for the service of keeping your will safe.

The Master of the High Court requires the original will in order to appoint an executor to wind up your estate, so it is important that the original does not get lost.

Can a defective will be accepted as a valid will?

If a will does not comply with the requirements of the Wills Act, potential heirs can have it accepted as the valid will of a deceased person by applying to the High Court for an order declaring the will valid. If you plan to do this, it is best to seek the assistance of a fiduciary practitioner who will be able to advise you of your prospects of success.

Court applications are costly and will delay the winding up of an estate, so it is better to draft your will correctly in the first place.

This article was written by Smart About Money editor Laura du Preez and reviewed by Jan du Plessis, the chief executive officer of the Fiduciary Institute of Southern Africa