Importance of having a Will in South Africa?

Estate planning is an essential step in safeguarding your assets and ensuring your wishes are
followed after your death. Central to this is having a valid will, a document that provides clear
instructions as to how your estate should be distributed. If you pass away without a will your
estate will be distributed according to the laws of intestate succession, which follow a strict
legal formula that might not align with your personal preferences.

The Concept of Intestate Succession
Intestate succession refers to the statutory system that governs estate distribution when an
individual dies without a will. Under the Intestate Succession Act 81 of 1987, specific rules
determine who will inherit the estate based on their relationship to the deceased. In the
absence of a will, this process is intended to ensure that immediate family members and blood
relatives are prioritised. However, it can be restrictive, as it does not allow any flexibility to
address unique family situations, non-blood relations, or other wishes of the deceased.

How is the Estate Distributed without a Will?
In South Africa, the distribution of an intestate estate follows a set order of inheritance, which
prioritizes spouses and descendants. The key rules are as follows:
Surviving Spouse Only: If the deceased is survived only by a spouse and has no children, the
spouse inherits the entire estate.
Surviving Children Only: If there are no surviving spouse, children will inherit the estate in
equal shares. This applies to biological children and adopted children, but stepchildren may
only inherit if legally adopted by the deceased.
Spouse and Children: When both a spouse and children survive the deceased, the spouse
receives either a “child’s share” or R250 000, whichever amount is greater. The remaining
estate is then equally divided among the biological and adopted children. A “child’s share” is
calculated by dividing the estate by the number of children and the spouse.
Other Blood Relatives: If there is no surviving spouse or children, the estate will go to the
closest blood relatives, including siblings, parents, or other extended family members. If the
closest living relatives are distant, the estate may be divided among them equally.
No Surviving Relatives: Without surviving relatives, the estate will be held in the Guardian’
Fund for up to 30 years. During this period, any unknown relatives may come forward to claim
the estate. If no legitimate heirs are identified, the estate will ultimately revert to the state.

Why Having a Will is Crucial and key advantages
A will offers flexibility and legal certainty when planning the distribution of assets. It allows
individuals to designate chosen heirs, specify who should receive particular belongings, and
appoint guardians for minor children. It enables the selection of an executor to oversee the
estate’s distribution, helping to minimize misunderstandings or conflicts among family
members. In contrast, intestate succession does not account for the deceased’s personal
wishes and can result in conflicts among surviving family members who may feel overlooked

A testator may include a fideicommissum condition in their will where the initial beneficiary
receives property with the requirement that it will pass to a subsequent heir after a certain
period or upon specific conditions. For example, a parent might leave a house to a child with
the stipulation that it will eventually be inherited by the grandchild. This condition helps
preserve family assets across generations.

Another advantage of a will is that it allows for the creation of a trust to manage assets for
minor children until they reach a suitable age. By appointing a trustee, the testator can ensure
the inheritance is used for the children’s needs. Without such a provision, any assets inherited
by minors would likely be managed by the state’s Guardian’s Fund or a court-appointed
guardian, potentially limiting access to funds and delaying distributions

A testator can furthermore outline specific terms or conditions attached to an inheritance. ,
testator could for example stipulate that a beneficiary may only receive their inheritance upon
obtaining a university degree or reaching a certain age. These conditions must however
remain reasonable and lawful in order to be valid.

Requirements for a Valid Will
For a will to be legally valid, it must adhere to the formal requirements set out in the Wills Act
7 of 1953. The testator must be 16 years or older and mentally capable of understanding the
will’s implications. The document must be in writing, signed by the testator and two competent
witnesses at the same time. When a mark, rather than a signature, is used, a Commissioner
of Oaths must be present to confirm the Testator’s identity and to verify that the will belongs
to the Testator. Failure to meet these requirements can result in a will being declared invalid.

Challenging the Validity of a Will
Even when a will exists, its validity can be disputed. Common grounds for contesting a will
include non-compliance with the Wills Act’s formalities, fraud, forgery, or undue influence on
the testator. The courts generally try to uphold the wishes of the testator, but they may rule
against the will if there is sufficient evidence to prove on a balance of probabilities that it was
not created voluntarily or does not reflect the deceased’s wishes. If a party wishes to dispute
the validity of a Will, that party carries the burden of proof to support their claim.

In the case of Kunz v Swart and Others 1924 AD 618 the court assessed the issue of forgery,
examining whether the will represented the testator’s wishes. In Pillay and Others v Nagan
and Others 2001 (1) SA 410 (D), the applicants successfully contested a will’s validity, arguing
that the signature had been forged. These cases demonstrate the court’s role in protecting the
integrity of wills, ensuring they are genuine reflections of the testator’s intentions.

Conclusion
Creating a valid will is a powerful step toward ensuring your estate is distributed according to
your preferences. Without a will, intestate succession applies, and although it provides a
structured approach to asset distribution, it is often rigid and may not reflect the deceased’s
unique family dynamics or intentions. With a will in place, you can gain peace of mind knowing
your assets will be managed as you intended. Given the complexities of estate planning and
the possibility of disputes, it is advisable to seek professional assistance when drafting a will,
ensuring that your hard-earned assets are preserved and passed on according to your wishes