The phrase “leaving a legacy” refers to one’s ability to leave one’s possessions to those who survive you. In South Africa leaving a legacy starts with a person’s last will and testament.

A person’s last will and testament contains such person’s wishes on how his/her possessions, assets and/or immovable property should be bequeathed, as well as how
their dependents are to be cared for after their demise. If a person fails to depose to a last will and testament such person will die intestate which
means that his/her estate will be administered in terms of the Intestate Succession Act 81 of 1987. This entails that the deceased party’s possessions will be distributed amongst the deceased’s surviving blood relatives in a specific order. If a deceased has no known surviving blood relatives the deceased’s possessions, assets and/or immovable property will be forfeited to the Government. Unfortunately, most South Africans die without leaving a last will and testament.

It is important to have a valid will and last testament as it contains the deceased’s wishes pertaining to the distribution of his/her assets, appointment of guardians for minor children, the vesting of a trust to manage the inheritance of minor beneficiaries and/ or special need beneficiaries, including, however not limited to, appointing an executor to ensure that the deceased’s possessions, assets and/or immovable property are divided and/or distributed according to the deceased’s will.

In the event that a testator/ testatrix does not make provision for a trust to be registered in order to manage the inheritance of minor beneficiaries, such minor beneficiaries’ inheritance will be paid to the Guardian’s Fund until such time that the minor beneficiary reaches the age of 18.

To ensure that your last will and testament is valid there are certain requirements that must be met. The requirements for a valid will as prescribed in the Wills Act 7 of 1953 are as follows:

1. The will must be in writing;
2. The will must be signed in the presence of two competent witnesses (a witness must be older than 14 (fourteen) years);
3. The testator must initial each page of the will and sign in full on the last page of the will;
4. The witnesses must initial each page of the will and sign in full on the last page of the will;
5. The witnesses cannot be listed beneficiaries in the said will;
6. All the parties must physically be in each other’s presence upon signature of the will.

If a will does not comply with any of the abovementioned requirements, the court can condone the will. An application will have to be brought to court for the court to consider, whether such document will be considered to be the deceased last will and testament.

Notwithstanding the fact that such document does not necessarily comply with the said requirements of a valid will. Only if the court is satisfied that such a document was firstly executed and/or drafted by a deceased person and secondly that it was the intention of the deceased person for the drafted document to be his/her will, the court will order the Master of the High Court to accept the document as the will and testament of the deceased party. This can, however, be a very costly process.

To ensure that your legacy is not costly nor causes your loved ones any inconvenience, it is advisable that all the necessary requirements of your last will and testament are met. The original last will and testament must be kept safe as the original will and testament must, furthermore be submitted to the office of the Master of the High Court upon reporting of the estate of the deceased person/testator/testatrix.

Should you require assistance in the drafting of your last will and testament do not hesitate to contact our offices for assistance with same.

Associate Legal Practitioner (Attorney)
LLB; LLM(Estate Law) (NWU)
T: 012 993 5907