Dr afting of a will

South Afr ican law:

In the law, there is a recognition of freedom of testation, as long as it is done freely and in good faith.
You are allowed to do with your estate as you please.
If a person is excluded from inheriting, they can still claim maintenance if you are entitled to it.

Succession:
Testate – with a will
Intestate – without a will or an invalid will (not accepted by the master)

T estate succession – dr afting a will:

Parties:
Testator (male) / testatrix (female)
Executor (male) / executrix (female) / trustee
Executor is the one who ensures that the will is sent to the master and is dealt with
Trustee deals with trust fund or for those who cannot stand
Beneficiaries / heirs / legatees

The Wills Act 7 of 1953:

Came into power on 1 January 1954
The Succession Amendment Act 43 of 1992 is for wills executed from 1 January 1954 and the testator
has died on or after 1 October 1992. If before, the Wills Act is applicable.

• The Wills Act 7 of 1953 (8The Wills Act), as amended, prescribed the requirements or formalities
for a valid will.
o This act applies where such a will was executed on or after 1 January 1954
• The Law of Succession Amendment Act 43 of 1992 (The Amending Act)
o This act mad considerable changes to the law applicable to the execution of wills
o This act applies where such a will executed on or after 1 January 1954 and the testator dies
on or after 1 Octobers 1992

Example:
o If a testator died before 1 October 1992: The Wills Act 7 of 1953 (as it existed prior to the coming
into operation of the Amending Act) would apply.
o However, if a testator died on or after 1 October 1992: Then the formalities of the Wills Act as
amended by the 8Amending Act 43 of 19929 would apply.
The date of death is therefore important as it will determine which act would apply.

Formalities/Requirements:
✓ In writing – hand written or typed out
✓ Signed at the end and on every page – as close as possible to the last words to prevent fraudulent
activities (Kidwell v Masters 1983)
✓ Testators signature must be made by them in presences of two or more competent witnesses (14
or older) at the same time
o May sign with a mark – ONLY testator, but if this happens it must be done in the presence of
a commissioner of oaths who must sign each page (if not, it will be invalid) except for the
page where their certificate will appear.
o A commissioner of oaths cannot also be a witness
o Testator’s signature must appear at the end of the will and on each page
o Jeffrey v Masters 1990 – court rejected a will because a person was a practicing attorney and
not a commissioner of oaths as they identified themselves as
✓ Witnesses must attest and sign in presence of testator and each other, preferable to sign each
page and can appear anywhere.
o To be a competent witness, you must be 14 years or older as they must be competent
to give evidence in court if it came to that
✓ Need to be over the age of 16 – age determines the capacity to make a will, status does not
matter
✓ Best to date a will, especially in the case where there is more than one will

Competency:
A competent witness
o 14 years or older
o Must be competent to give evidence in court (Must be of a mature age)

Capacity to make a Will:

o Any person 16 years or older
o Provided that he/she is capable of appreciation the nature and effect of the act.

The right to make a will is determined by the age of the individuals, and is not affected by:
o Emancipation
o Marriage
o Qualification
o financial status etc.

If a person is under the age of 16 years, he may not make a will.

The Age of a person determines capacity to make a will

o Status has no relevance.
o E.g. A 15-year-old Married Millionaire will not have the capacity to make a will.

The Act states that there is no requirement for the Will to be dated.
o However, for practical reason, it is important in order to determine the last will of the
deceased. (remember this for the test)

S2 (3 ) of Wills Act 7 of 1 9 5 3 :
This is also known as the rescue provision.
Even with all these requirements and formalities that must be met for a valid Will, there exists this
section which permits the HIGH COURT to order the Master to accept a document which has been
drafted or executed, but which does not comply with all the formalities of a valid Will, to accept the Will
as the last Will of a testator. NOTE!! Person lodging the document must make application to the HC,
and the HC will then order the Master to accept the document as the Will of the testator. Depends on
the formalities not met.

These formalities prescribed by s2 of the Wills Act are still part of our law. Compliance with these
formalities remains the only way for a testator to make that will, however, in certain instance, the HC
can tell the Master to accept a Will where certain formalities where not met.
Non-compliance however requires the intervention of the HC, as per s2(3) rescue provision

This permits the High Court to accept a document that does not comply with all the formalities as a will
– they direct the master to accept it as a will. This is an intervention by the High Court.

The court must be satisfied that:

✓ It is a document
✓ Was drafted or executed by the deceased
✓ They have died
✓ They had the intention for this document to be a will

The more requirements that are not met, the less probable it is to be accepted.
An intention or instruction to draft/amend a will does not form part of s2(3), it needs to be a document
– Bennett v Master the court decided that a document with the heading to instruct to draft a will was not
valid as there was no will or document.

It must be noted that an instruction to amend or draft a Will, as well as a document which is merely
intended to convey information about what the testator wished to have included in his Will, that do not
comply with requirements of this S2(3)- i.e., does not fall under the scope of this section.
So, if it was merely just an instruction before the person passed away, or something that they wanted to
include in their Will, but then the person passed away, in those instances, that does not comply with the
requirements of s2(3).

The court will only accept when it is a document in front of the Court which was drafted or executed by
the deceased, and the person has since died, and the person intended that document to be his last will.
Not to make changes or a simple instruction.
So, in the case of instructions, the maker intends that another document will be drafted, and in this
instance, it is not the case. Here, the document was already drafted and now we’re trying to rescue it

Bennette v The Master of the Supreme Court and Another 1995. In this case, a document with the
heading, ‘Request to draft a Will’ was in contention. The court held that that was clearly an intention to
draft a Will. In that instance it could not be rescued under s2(3). Must, be a document, drafted by a
testator, intended to be his or her Will. The Court: Must be satisfied that there is a document which was
drafted or executed by the deceased, who has since died and who intended that document to be his
Will. In that instance the court will look if that document can be rescued where it did not meet all the
formalities and requirements for a valid Will.

T estamentar y T r ust:
These are created by a will that includes a trust deed that comes into existence after death. This acts as
a manual that outlines who the parties are and what should be done.
This is also known as a mortis causa trust.
This is helpful when a testator wishes to regulate administration of inheritance after their death and to
avoid the inheritance from going into the guardian’s fund. It protects the funds of the minor. This is
provided for in section 43(2) of the Administration of Estates Act 66 of 1965.
Only the trustee has access to the fund to care for the beneficiary in the absence of the testator – the
duties and powers will be in the will.
Trusts are governed by the Trust Property Control Act 57 of 1988.
The trust acts as a way to avoid that the minor’s portion is being paid into the guardian’s fund.
When the beneficiary needs to get the control over the fuds, a letter of authority is needed from the
master.
S92 of Act 66 of 1965 states that all moneys that have not been claimed for 30 years shall be forfeited
to the state.

Trustee will have access to the Trust funds to care for the beneficiary/ies in the absence of the testator,
that is at times where the beneficiary requires assistance through immaturity, disability, or incapacity.

The powers and the duties of the trustee must be contained in the Will. The trustee cannot just do
whatever he or she feels like. Powers and duties will be stipulated and must be contained in the Will as
to how the trustee must divulge of the funds.

Trustees are not permitted to act, until the Master grants the nominated trustee letters of authority to do
so/to act
F actor s to consider when dr afting a will:
Testator often nominates a family member as executor of the estate. They do have total freedom to
appoint anyone as executor or co-executor – this can be an attorney, accountant, etc. It is advisable to
nominate another person in case something was to happen such as the person passing or rejecting the
role.

Legacies:
The bequest of specific property (movable or immovable) to a specific person, trust or charity. When the
estate is distributed, the legacies will be paid first before any of the heirs get paid.
The person receiving this becomes the legatee(s).
The legatee gets paid first before the heirs get their bit.

Heir s:
They will succeed the residue of the estate.
E.g., “I bequeath the residue of my estate to my wife, Janet Jay, and failing her, to my children born of
the marriage by representation per stirpes”
It is from the heirs share that the expenses are paid.

F ideicommissa and Usufr ucts:

Persons nominated have the use and right to enjoy the property and the fruits thereof. It is usually for
the duration of their lives – upon the fulfilment of some condition.
Both are entitled to the use of the property but neither is allowed to alienate the property, unless the will
provides the contrary

E.g., Fideicommissum:
“I bequeath my estate to “a” subject to the condition that on “a’s” death my estate will devolve to “ b”.
Usufruct:
“I bequeath my estate to the children born of my marriage, subject to a life usufruct over my estate to
my wife, carol jay.”

A fideicommissum is a type of bequest in which the beneficiary is encumbered to convey parts of the
decedent's estate to someone else. For example, if a father leaves the family house to his firstborn, on
condition that they will bequeath it to their first child.
Usufructuary heir can stay for as long as they wish to.
A Usufruct is a legal institution in which someone, who is not the owner, is given the right to use and
enjoy the profits and advantages of something belonging to another as long as the property is not
damaged or altered in any way, for a certain period of time.

Witnesses:
A witness must be older than 14. They will not be disqualified from receiving any benefit from a will if it
has been attested to and signed by at least 2 other competent witnesses who are not named. If there
are not two others, the witness can be disqualified from receiving anything from the will. They need two
external people to witness in order to enjoy their share.
In this instance, there will be three witness signatures.

Heir s to inher it fr ee fr om community of pr ope r ty and accr ual syste m:

The will may preclude benefits accruing to any beneficiary forming part of a community estate. An
inheritance is excluded in the calculation of accrual unless it is provided to the contrary in an
antenuptial contract. Cannot preclude creditors – du Plessis and others v Pienaar case
Du Plessis and other v Pienaar – the appellant inherited and was married in community of property. It
was bequeathed subject to it not being formed part of the joint estate. The husband had a business that
went through tough times and they were set to be sequestrated. They looked at the appellants fathers
will where it showed that it was precluded. Court said that when estate is sequestrated for both of the
parties, both of their property will be available to be claimed to settle their debts.
E.g., “Should any person who will benefit under this, my will be married or marry or remarry at any
time in the future in community of property or subject to any law of accrual, then notwithstanding such
community of property or accrual, the benefits payable to him/her under this will shall devolve upon
and belong to him/her personally and shall not form part of any such community or accrual”
or: My bequest and the proceeds of my bequest to my beneficiaries shall be Excluded from any
matrimonial property regime.

Secur ity:
Every executor must provide security to the satisfactory to the master for the proper performance of his
functions.
It is there to be able to recover. The reason for this is that, if any default is made by the executor in the
proper performance of his duties, which results in the estate suffering any loss then the master may
enforce the security and recovery from the executor and his sureties the loss to the estate.
An exception is that the testator indemnifies the executor and the master can also suspend the
obligation (when it is their spouse, partner, or child)
To ensure the estate will not suffer any losses.

E.g., 1. “The master of the high court is directed to dispense with the necessity of my executor
furnishing security for the administration of my estate.”

2. “I nominate my brother, carl smith, as executor of my will and I direct that he be exempted from
having to find security for the due fulfilment of his duties as such.”

Clauses contained in single will:

Heading – citing testators name, id number, marital status and current residential address – the will
must be identified as that of the testator
A will must always be in the third person (“I”)

Revocation – the later will by implication revokes all previous wills – all previous wills can still count,
and can be problematic

Codicil – a schedule or annexure to an existing will that is made to add or change an existing will. This
does not need to be signed by the same witnesses who signed the will.

Appointment of executor – need to include security.

Beneficiaries – bequeath to different parties (have a heading; beneficiaries, legacies, heirs – but this is
not needed). This is when you bequeath to different parties.

Exclusion of benefits from matrimonial property regime

Date and sign – by the witnesses and the testator

The validity of a will does not invalidate when there is a clause not included.

EXAMPLE:
Joan smith approaches you and requires you to draft a will for her, with the following conditions:
- I nominate my daughter Jacky smith to be my executrix
- I direct that she shall not need to pay any security for the fulfilment of her duties as executrix
- I want to leave the sum of r10 000.00 to my grandson – Joshua smith
- I want to leave the sum of r10 000.00 to my grandson Rhys smith
- I want my daughter, Jacky smith, to inherit the immovable property which is situate at no 3
Mimosa Avenue, Bellville.
- I want my sister, dawn may, to inherit the residue of my estate.
 - I do not want any of the benefits to form part of the marriage regime should my beneficiaries
marry or be married.
(Supplement your answer with the necessary information)

Joint wills and massing:

A joint will is a will of two or more persons, it operates as a will of the first dying and the survivor.
This is done for convenience.
It operates as the will of the first dying spouse.
When the first spouse dies, the same will still be used when she second one dies if it is drawn up
properly.

Massing occurs when two or more persons with testamentary capacity, combine or consolidate their
separate estate into one estate. This gives directions on what must be done with the estate on the
occurrence of a specific event. Two or more persons combine their separate estate into a single estate,
and they will prescribe what must be done at occurrence of specific event which is usually the death of
one of the spouses.

Therefore, if a joint will provide for a consolidation of some or all of the property of both testators into
one unit for the purposes of a joint disposition to a third party upon the death of the first dying OR
upon the death of the survivor and also conferred a benefit out of the property of the first dying upon
the survivor, then if the survivor adiates it is said that a massing as occurred.

If the survivor adiates, a massing has been affected.

Portion is left to survivor, then what happens when survivor dies.
Usually put in a clause that says what will happen to the assets if they die simultaneously. First the
surviving spouse, thereafter it is given to the successors.

Adiation or r epudiation:
Adiation is the acceptance of a benefit under a will. If you adiate, you receive the benefit that has been
bequeathed. They accept all the conditions that is attached to the benefit and must adhere to the
conditions.

Repudiation is the rejection of the benefits under a will. They forfeit all benefits as the beneficiary under
the will but retains their own property (husband and wife make joint will, surviving spouse will inherent
the deceased estate and upon surviving spouse death it will go to the children, one has passed but the
husband repudiates, this means he no longer benefits from the deceased’s half, they will retain their
own share and the estate will be done with in terms of the wishes of the deceased – given to children)

P er stir pes and per capita:

Per stirpes mean a distribution by representation (where a bequest is left to a and b failing either of
whom their issues by representation per stirpes) if a is survived by 3 children, each child will inherit a
third.
Per stirpes is where a deceased's child's heirs can inherit in his or her place. This can continue through
any number of future generations.

Per capita means a distribution in equal shares among the persons entitled to take
Per capita means that all living members of the beneficiary group receive an equal share. If a
beneficiary dies before you, the deceased beneficiary's share is returned to the estate and distributed
evenly among the surviving beneficiaries.

Limitation on fr eedom of testation:

Proceeds from pension fund – s37C of the Pension Fund Act 24 of 956 – benefits payable by a
pension, provident or retirement annuity fund, does not form part of the deceased’s estate.
• If within a year of the members death the fund discovers a dependent of the deceased, the benefit
has to be paid to the dependent.
• If no dependent is located, and the member has designated in writing a nominee who is not a
dependent, payment shall then be made to the nominee.

Surviving spouse – maintenance of surviving spouse act 27 of 1990 – you have a claim of deceased
spouse for maintenance from 1 July 1990 onwards. Kept in mind that all maintenance requirements
need to be met (same regulations).
Factors they take into account – the amount in the deceased’s estate available after paying creditors
and admin fees, the existing and expected means, earning capacity, financial obligations, the
subsistence of the marriage (time), standard of living of survivor during marriage, the age of the
survivor at the date of death.
Notes on DRAFTING A WILL!!!
• HEADING

• Cover page [information is exactly the same as when you start your Will] see example of Sally White
bellow.

• Start Will with, ‘I the undersigned…

 Name and surname
 ID number
 Marital status [in community of property, single(divorced), just single etc…]
 Residential address of testator/testatrix. [address where the person stayed when the Will was
drafted.]
 ‘Hereby declare this to be my last Will and testament.’

• REVOCATION CLAUSE. [very important because you revoke all previous Wills if you are drafting a
new Will]
• ‘I hereby revoke all previous wills and testamentary dispositions made by me.’

• NOMINATION OF THE EXECUTOR/EXECUTRIX

• ‘I hereby nominate my son, Paul (ID Number……….) to be the executor of my estate. In the
event Paul is unable to fulfil his duties as Executor, I nominate Chris (ID Number….) to be the
executor of my estate.’

• Note!!! If it is a more than one page Will, then please ensure that there is space on each page of the
Will for the witnesses and the testator/testatrix to sign.

• SECURITY CLAUSE
• ‘I expressly direct that my executor/executrix is exempted from any obligation to furnish
security to the Master of the High Court for the due and proper fulfilment of his duties’

• Beneficiaries [don’t have to put legacies and heirs separately, can put them all under one another,
but see what scenario expects from you]
• See will example bellow!!!
• Importantly: ‘The residue of my estate to my daughter… Note!! Base this upon testators
wishes.
• ‘All monies in the bank must…’
• Note to cover all the testators’ assets

• THE EXCLUSION OF BENEFITS FROM A MATRIMONIAL PROPERTY REGIME.

• ‘My bequest and proceeds of my bequest to my beneficiaries shall be Excluded from any
matrimonial property regime.’
• Date your Will
 ‘THUS, DONE AND SIGNED AT BELLVILLE, on this the 4th day of JULY 2021, in the
presence of the undersigned witnesses, all being present at the same time and each
seeing the other sign.’ ‘The witnesses further confirm that the testatrix signed first.’

• Concluded with signature of parties (witnesses and the testator/testatrix)

COMMISSIONER OF OATHS
• NOTE!!! Commissioner of oaths certificate will only be attached to a Will where the testator/testatrix
sign by using a mark or by another person, with the consent or direction of the testator/testatrix and in
the presence of the testator/testatrix. [NB!!!]
• Where another person signs on behalf of the testator/testatrix with the consent or direction of the
testator/testatrix, and in the presence of the testator/testatrix, then that person’s name appear in the
brackets. E.G signature line………………………. (testatrix) [Peter Nali, acting with the direction/consent
of the testator/testatrix, signs on behalf of Sally White the testatrix]

• Note!! The attorney who is assisting you to draft a will cannot also be the commissioner of oaths,
even though that attorney is also regarded as a commissioner of oaths. The drafting attorney only
assists in drafting the Will. He must then send the testator/testatrix to another attorney in order for that
attorney to sigh as commissioner of oaths. That attorney or colleague will then commission the
certificate.

• The COMMISSIONER OF OATHS CERTIFICATE:

 There must be a name of the commissioner of oaths.
 Where this person is practicing
 Address
 Attorney signing must sing in capacity of commissioner of oaths and not in capacity of being an
attorney:

• ‘In my capacity as commissioner of oaths’

 Note!!! Not in my capacity as an attorney or an advocate. Must be in capacity as commissioner of
oaths.

 Need to state that:

• ‘Certify that I have satisfied myself as to the identity of the testatrix, Sally White (name of
testatrix/testator + ID NUMBER) and confirm that the will so signed is the will of the testatrix/testator.’ 
Certificate must also be dated

• ‘DATED AND SIGNED AT BELLVILLE THIS 4TH DAY OF JULY 2021.

 Make provision for the signature of the commissioner of oaths, witnesses and the testatrix.
 NB!!! KNOW WHEN TO INSERT A COMMISSIONER OF OATHS CERTIFICATE AND ALSO WHEN
NOT TO INSERT IT.
 LAST WILL AND TESTAMENT
OF
JOAN SMITH
LAST WILL AND TESTAMENT

I, Mrs. Joan Smith, with ID number, 9607086315088, a single female (divorced), residing at No 3
Mimosa Avenue, Bellville, declare this to be my last Will and testament.

1. Revocation
I hereby revoke any and all previous Wills, testamentary dispositions, and codicils made by me.

2. Appointment of Executrix
I nominate my daughter, Jacky Smith, with ID number, 9708086721088, residing at No 3 Mimosa
Avenue, Bellville, as executrix of my Will.

3. Security
I direct that my daughter, Jacky Smith, with ID number 9708086721088, residing at No 3 Mimosa
Avenue, Bellville, be exempted from having to find security for the due fulfilment of her duties as
executrix.

As Witnesses:
First witness Second witness Testatrix
Name: Name: Signature:
Signature: Signature: Mrs. Joan Smith

4. Beneficiaries
I bequeath the following legacies:
4.1 The sum of ten thousand rands (R10 000) to my grandson, Joshua Smith, with ID number
0308170845088, residing at No 3 Mimosa Avenue, Bellville.
4.2 The sum of ten thousand rands (R10 000) to my grandson, Rhys Smith, with ID number
0503236924088, residing at No 3 Mimosa Avenue, Bellville.
4.3 Immovable property, situated at No 3 Mimosa Avenue, Bellville to my grandson, Daniel Hart, with
ID number 0101106212088, residing at No 3 Mimosa Avenue, Bellville.

5. Exclusion of Benefits from matrimonial property regime.

My bequest and the proceeds of my bequest to my beneficiaries shall be excluded from any and all
matrimonial property regimes.

Drafted on:
Dated:
Signed by the above-named Mrs. Joan Smith as and for her last Will in our presence and then by us in
hers.

Mrs. Joan Smith

First witness Second witness
Name: Name:
Address: Address
Signature: Signature:
 EXAMPLE OF A SINGLE WILL
NB…COVER PAGE

LAST WILL AND TESTAMENT

SALLY WHITE
Identity Number: 3706060471084
A single female, presently residing at No. 4 Green Street, Parow, Western Cape Province.

(next page)
I, the undersigned,
Sally White
A single female (divorced)
[Identity number:3706060471084]
Residing at No. 4 Green Street, Parow, Western Cape Province

hereby declare this to be my Last Will and Testament.

1. REVOCATION OF FORMER WILLS

I hereby revoke all previous wills and testamentary dispositions made by me.

2. NOMINATION OF EXECUTOR
I hereby nominate my son, A (ID. Number:) to be the Executor of my estate. In the event A is unable to
fulfill his duties as Executor, I nominate B (ID. Number:.), to be the Executor of my Will.

AS WITNESSES:
1 __________________ _______________________
TESTATRIX
[SALLY WHITE]
2 __________________

(next page)

3. SECURITY
I expressly direct that my Executor is exempted from any obligation to furnish security to the Master of
the High Court for the due and proper fulfilment of his duties.

4. BENEFICIARIES
4.1 I bequeath my immovable property situate at No. 4 Green Street, Parow, To my daughter, B (ID
NUMBER: ……….)
4.2 I bequeath me that my other immovable property situated at No. ………………. To my son, A) ID
NUMBER: ……………)
4.3 I bequeath my motor vehicle, being a BMW to my youngest son, C (ID NUMBER: …….)
4.4 I bequeath the residue of my estate to my other daughter, D (ID NUMBER: ….)
4.5 All monies held in my Absa bank account must be divided equally between my two grandchildren,
namely;

Susan White (ID…….

Kelly White (ID……….
AS WITNESSES:
1 __________________ _______________________
TESTATRIX
[SALLY WHITE]
2 __________________

(next page)

5. THE EXCLUSION OF BENEFITS FROM A MATRIMONIAL PROPERTY REGIME

My bequest and the proceeds of my bequest to my beneficiaries shall be Excluded from any
matrimonial property regime.

THUS, DONE AND SIGNED AT BELLVILLE on this the 4TH day of JULY 2021, in the presence of the
undersigned witnesses, all being present at the same time and each seeing the other sign.
The witnesses further confirm the testatrix signed first.

AS WITNESSES:
1 __________________ ________________________
TESTATRIX
[SALLY WHITE]
2 __________________
COMMISSIONER OF OAT HS CERT IF ICAT E
I, RAYMOND VAN WYK of THE UNIVERSITY OF THE WESTERN CAPE, LAW CLINIC, ROBERT
SOBUKWE ROAD, BELLVILLE, in my capacity as commissioner of oaths certify that I have satisfied
myself as to the Identity of the Testatrix, SALLY WHITE (I.D. 3706060471084) and confirm that the Will
so signed is the Will of the Testatrix.

DATED AND SIGNED AT BELLVILLE THIS 4TH DAY OF JULY 2021

SIGNATURE: _____________________________
(Commissioner of oaths)

AS WITNESSES
1. _________________________ ________________________
TESTATRIX
[SALLY WHITE]
2. _________________________