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South African law

Wills & law

A plain-language guide to the laws that decide whether your will is valid and how your estate is handled.

Wills Act 7 of 1953 — section 2(1)(a)

What makes a will valid

  • The will must be in writing (typed or handwritten).
  • You must sign at the end of the will, and sign every page.
  • Two or more competent witnesses must be present at the same time and sign in your presence and each other's.
  • If you sign with a mark or someone signs on your behalf, a Commissioner of Oaths must certify it.
  • Anyone 16 or older who understands what they are doing may make a will (section 4).
  • A witness must be 14 or older and able to give evidence in court.

Wills Act — section 4A

Witnesses may not benefit

  • A witness, the person who writes the will for you, or their spouse, is disqualified from inheriting under it.
  • They may also not be appointed as executor, trustee or guardian in that will.
  • Choose two independent adults who receive nothing from your estate.

Wills Act — section 2B

The 3-month divorce rule

  • If you die within 3 months of a divorce, your will is read as if your ex-spouse died before you — unless the will clearly says otherwise.
  • After 3 months this protection falls away: an ex-spouse still named in your will can inherit.
  • Update your will promptly after a divorce.

Intestate Succession Act 81 of 1987

If you die without a will

  • Spouse only: the spouse inherits everything.
  • Children only: the estate is divided equally between them.
  • Spouse and children: the spouse gets a child's share or R250,000, whichever is more; the rest goes to the children.
  • No spouse or children: parents, then siblings and other blood relatives inherit.
  • You cannot choose your executor, guardian or who receives specific assets.

Trust Property Control Act 57 of 1988 · Children's Act 38 of 2005

Protecting minor children

  • Money left directly to a child under 18 is paid into the Guardian's Fund at the Master's Office.
  • A testamentary trust in your will lets trustees you choose manage the money for the child's care and education.
  • You may nominate a guardian for your minor children in your will.

Matrimonial Property Act 88 of 1984

Your marriage affects your estate

  • Married in community of property: you can only leave your half of the joint estate.
  • Out of community with accrual: the accrual claim is settled before heirs inherit.
  • Out of community without accrual: your estate is yours to leave.

Administration of Estates Act 66 of 1965

The Master and the executor

  • A death must be reported to the Master of the High Court within 14 days.
  • The original signed will must be lodged with the Master — keep it safe and tell someone where it is.
  • The executor acts only once the Master issues Letters of Executorship.
  • The executor files an inventory (J243) and a Liquidation and Distribution account, which is advertised for inspection.

Estate Duty Act 45 of 1955 · Income Tax Act (Eighth Schedule)

Estate duty and taxes

  • The first R3.5 million of a net estate is free of estate duty; unused abatement passes to a surviving spouse (up to R7 million).
  • Everything left to a surviving spouse is exempt from estate duty (section 4(q)).
  • Estate duty is 20% up to R30 million and 25% above that.
  • Death is a capital gains event; the first R300,000 of gains in the year of death is excluded.
  • Executor fees are capped at 3.5% of gross assets plus VAT, unless the will says otherwise.

Constitution s12(2) · National Health Act 61 of 2003

Living Wills

  • A Living Will states your wishes about life-sustaining treatment if you can no longer speak for yourself.
  • It is separate from your last will, which only takes effect after death.
  • South Africa has no statute or official register for Living Wills; doctors generally respect a clear, signed directive.
  • Sign it before two witnesses and give copies to your family and doctor.

Signing checklist

  1. Print the will single-sided and read it through.
  2. Gather two independent witnesses who inherit nothing.
  3. Sign every page and the end, with both witnesses watching.
  4. Witnesses sign every page and the end, in your presence.
  5. Write the date and place of signing.
  6. Store the original safely and record its location in the registry.
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General information only, not legal advice. Amounts reflect current legislation and SARS rates and may change — consult an attorney or fiduciary practitioner for your situation.