Who is competent to make a will?

The person who draws up a will is called the testator / testatrix.

All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death, unless they were mentally incapable of appreciating the nature and effect of his / her act at the time of making the will.

The burden of proof that he / she was mentally incapable at that time, shall rest on the person alleging the same.

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Understanding Executor Fees in South Africa

Losing a loved one is a difficult time, and navigating the legalities of their estate can feel overwhelming. One of the most common questions families ask is: "How much does it cost to appoint an executor?" If a Will doesn’t explicitly state what the executor should be paid, South African law provides a clear framework to ensure the process remains fair and transparent. The Prescribed Tariff: What You Need to Know Under the Administration of Estates Act, 66 of 1965 , executor remuneration is calculated using a standard tariff. This ensures that even if the Will is silent on fees, there is a legal benchmark in place. The standard rates are: 3.5% of the gross value of the estate's assets at the time of death. 6% on any income (like rental income or interest) earned after the date of death. A minimum fee of R350 (for very small estates). The "VAT Factor" in Estate Fees A common point of confusion is whether Value Added ...

Living Will

A living will is a written document in which an individual outlines their wishes regarding medical treatment if they are unable to communicate or make decisions for themselves. In South Africa, a living will is typically used to express a person's desire not to have artificial life support continued if they are terminally ill or in a permanent vegetative state. Additionally, living wills often specify that if the person is experiencing severe pain, they wish to receive medication for pain relief, even if this may unintentionally shorten their life. This approach reflects the principles of pain relief and dignity in end-of-life care, which are recognised in South African medical and ethical practice. Although South African law does not provide detailed legislation specifically governing living wills, medical practitioners generally respect such documents as expressions of a patient's wishes, provided they are clear, lawful, and consistent with accepted medical ethics. Author...

The Truth Behind the Legacy Protection Plan: The Reality of "Free" Wills

When planning your estate, you may come across financial institutions, banks, or trust companies offering to draft and store your Last Will and Testament for free. While a free Will is a legitimate service, it is critical to understand the commercial business model behind it, how it affects your estate, and the legal and financial traps tied to these plans. 1. How the "Free Will" Model Works Institutions can afford to draft Wills for free because of a specific clause hidden in the fine print: The Designated Executor: The institution names itself or its trust company as the sole, irrevocable executor of your estate. Statutory Fees: By South African law (the Administration of Estates Act ), an executor is entitled to charge up to 3.5% + VAT on the gross value of your assets, plus 6% + VAT on any income earned by the estate after death. The Policy Cross-Sell: To prevent these high fees from draining your family’s inheritance, the institution sells you a monthly...

Risks Associated with Do-It-Yourself Pro Forma Wills

The preparation of a do-it-yourself (DIY) pro forma will may, at first glance, appear straightforward and cost-effective, particularly where inexpensive templates are downloaded from the internet or purchased from stationery retailers. However, the execution of a will without appropriate professional guidance may give rise to significant legal deficiencies, potentially resulting in financial prejudice and emotional distress to surviving heirs. It is imperative that one’s passing does not become an avoidable source of hardship for loved ones merely for the sake of utilising a free or generic template. In the Republic of South Africa, the Wills Act 7 of 1953 prescribes strict formal requirements for the validity of a will. Many generic or foreign-based templates fail to comply with these statutory provisions. The use of such templates, without proper adaptation to local legislative requirements, may render the document invalid and unenforceable. D-I-Y wills frequently fail to properly ad...

Your Will must be available after you passed away.

Ensure that your original signed will is kept safe by a trustworthy person or institution, as a copy of a will is not deemed a valid will. You can also have more than one signed copy of the original will and request different trustworthy persons to keep a copy, in order to ensure that there will be an originally signed copy available after your death. Inform your family and heirs where/who is keeping a copy (or copies) of your will, so that they do not struggle to obtain it after your death.

Who Has the Final Say? New Developments in Burial and Tombstone Rights

The passing of a loved one often brings not only emotional grief but also complex legal disputes regarding final resting arrangements. In a significant clarification of South African common law , recent judgments have reinforced exactly where the authority lies when it comes to burial and the erection of tombstones . The Core Principle: Heirs and Executors First Under South African common law, the right and duty to bury a deceased person rests primarily with the person specifically nominated in the deceased’s will. However, in the absence of a will or clear instructions, this authority falls to the heirs and the executor of the estate . In a landmark ruling from the High Court (affirmed in April 2025), the court addressed a common friction point: Does the right to bury include the right to memorialise the grave with a tombstone?. Tombstones as an Extension of Burial Rights: The High Court clarified that the right to bury is not a one-time event. It naturally extends to the righ...

Reporting a Deceased Estate in South Africa

Losing a loved one is an incredibly difficult time, and the added pressure of legal paperwork can feel overwhelming. In South Africa, the law requires that a deceased estate be reported to the Master of the High Court within 14 days of the date of death. To help you navigate this process, I have compiled a comprehensive checklist of the documents you will need to gather. The "Master’s Pack": Essential Forms The reporting process begins with specific forms, often referred to as the "Master’s Pack," which you can find on the Department of Justice website : Death Notice (Form J294): This contains the personal details of the deceased. Inventory (Form J243): A preliminary list of all assets (property, bank accounts, vehicles) and liabilities (debts). Next-of-Kin Affidavit (Form J192): Required if there is no valid Will to identify the heirs. Acceptance of Trust as Executor (Form J190): ...

Understanding Estate Liquidity

When planning what happens to your estate after you pass away, it is easy to get caught up in who gets the family home, who inherits the vintage watch, and how to take care of the kids. But there is a silent, invisible dealbreaker in South African estate planning that can completely derail your best intentions: estate liquidity . In simple terms, liquidity is the amount of actual cash or cash-equivalents available in your deceased estate. Before your family can inherit a single cent or a piece of land, your estate has to clear its own bills. If there is no cash to pay those bills, your estate is considered "illiquid." That is when things can get incredibly stressful for your loved ones. The Hidden Trap: Control vs. Forced Sales Liquidity is the dividing line between your assets being handled on your terms, or being handled entirely on the executor’s terms. If your estate has enough cash: The executor pays off your debts, settles the taxes, hands ove...

Does Your Will Reflect Your Life Today, or Five Years Ago?

One of the most important documents you will ever sign is your will, and it requires your regular attention. Any change in your personal circumstances can necessitate a review of your will, especially a change in your marital status. When you divorce your spouse, you must update your will. According to Section 2B of the Wills Act, you have a period of three months from the date of your divorce to update your will. If you pass away after three months without updating it, it will be assumed that you intended for your ex-spouse to inherit as stated in your will. The same applies to your child's guardian, who will have full parental rights and responsibilities. This guardian will manage any property inherited by your minor child until they reach the age of 18. They will be responsible for making decisions regarding your child's schooling, extracurricular activities, religious instruction, and assisting or representing your minor child in contractual and legal matters until they rea...

Deceased Estates Administration

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