The Wills Act sets out the formalities required for a valid Will. The most important of these is that the Will must be signed by the testator in the presence of two witnesses and neither of the witnesses (or their spouses) may benefit from the Will. If one of the witnesses does benefit from the Will it does not necessarily mean that the Will as a whole will be invalid but it means that the benefit conferred on that beneficiary may not be more than what he or she would have received in terms of intestate succession.

A simple example will illustrate this: The testator’s wife signs as a witness to a Will in which she inherits the estate equally with the couple’s daughter. Their son is not named as an heir. Let’s assume the total amount for distribution is R 3 million. If she had not witnessed the Will, she would have inherited R 1.5 million (50%), but now she can inherit only R 1 million. The reason is that if her husband had died intestate she would have inherited a child’s share (which is calculated by dividing the value of the estate by the number of children plus her – in this case R 3 million divided by 3).

Care must also be taken in the drafting of the Will to ensure that there is no ambiguity. For example, in the following example – “I bequeath my property in Rondebosch, mortgaged to ABC Bank, to my son.” – it is not clear whether the property is to be inherited with or without the mortgage. According to our common law, the assumption is that an asset on which there is still a debt outstanding is bequeathed without the debt, unless the Will explicitly says otherwise. So in this example the outstanding debt will be settled out of the residue of the estate.

It is possible to make a conditional bequest in a Will but, again, this requires careful drafting. For example, a clause such as “I bequeath my estate to my wife provided she gives up smoking” is not enforceable because it is impossible to monitor whether this condition has been complied with. The condition also needs to have a sanction which will be invoked if the condition is not met. The following is an example of a correctly drafted clause: “I bequeath the sum of R 500,000 to my son Kevin provided he successfully completes a standard marathon within three months of the date of my death, and if he fails to do so this bequest shall fall away.”

Please contact us if you need any advice regarding your Will.