Wills

The law decides instead of you, by a fixed formula. If you leave a spouse and no children, the spouse inherits everything. Children and no spouse: the children. Both: your spouse receives a child's share or R250,000, whichever is greater, and the children share the rest. No spouse or children, and the estate climbs the family tree - parents, then their descendants, then the nearest blood relations. Since April 2024 a partner in a permanent life partnership with reciprocal duties of support inherits as a spouse.

The formula is not unjust - but it is nobody's wishes. It does not know that one child cared for you and another vanished; it appoints no guardian for your minor children; it chooses no executor you trusted; and it can leave a house jointly to people who cannot agree on anything. A will replaces the formula with your own voice. That is the whole point of it.

Here is the danger almost nobody knows about. A guardian cannot simply receive a minor child's inheritance money - the Act forbids it. Unless your will says otherwise, the executor must pay the money over to the Guardian's Fund, administered by the Master of the High Court, where it sits until the child turns 18. The Fund is honestly run and charges nothing, and interest accrues at a state-determined rate - but the money is out of the family's hands. Whoever raises your child must apply to the Master on the prescribed form, with quotations and accounts, each time school fees, clothing or medical costs must be paid; the capital the Master may release for maintenance is capped at R250,000; and money left unclaimed for thirty years is forfeited to the state.

The answer is drafted into the will: a testamentary trust. Your will creates the trust and you choose the trustees, and your children's inheritance passes to those trustees instead of the Fund - available for the children's maintenance and education without a government form in sight, and handed over at the age you choose, whether eighteen, twenty-one or twenty-five. The Master's own guidance acknowledges that a will may stipulate its own terms. When we draft a will for parents of young children, we raise this every time - it is one of the strongest reasons a will is drafted rather than downloaded - and it is done for a fixed fee of R1,600, trust included.

The Act sets no minimum - one trustee is lawful - but two is the sensible floor, and three where the estate is larger. Each trustee personally carries the statutory duty of care, diligence and skill; one pair of eyes audits nothing, and a sole trustee who dies leaves the trust headless while your children wait. The composition that works is one person who knows the children plus one independent professional. A brother or sister of the person making the will is usually the best family choice - close to the children, and of an age to outlast a trust that runs to 21 or 25; grandparents love the children dearly but may not outlive the term. The surviving parent should ordinarily be a trustee, but not the only one - and in divorced or blended families the will is often deliberately drawn so that the other parent does not control the money at all.

The rest is drafting craft, and it is where the fee earns itself. The will must exempt the named trustees from furnishing security, or bond premiums eat into the trust; it should allow decisions by majority and name substitutes, so a vacancy never paralyses it; and the law disqualifies some candidates outright - unrehabilitated insolvents and anyone with a dishonesty conviction among them. The firm can serve as the independent trustee. And the quiet masterstroke: separate the guardian who raises the children from at least one trustee who controls the money - each keeps the other honest.

The Act is strict, and courts apply it strictly. A will must be in writing and signed at the end by you, in the presence of two competent witnesses who are both present at the same time - and the witnesses must sign in your presence and in each other's. If the will runs to more than one page, every page must be signed. A witness must be at least 14; to make a will you must be at least 16 and able to appreciate what you are doing.

If you sign by mark, or someone signs on your instruction, a commissioner of oaths must certify the will as well. Miss any of these and the will is invalid - however clear your intentions were. Formalities are precisely where home-made wills die.

The law does not stop you - and the law of unintended consequences is waiting when you do. Home-made wills fail in two ways. They fail formally: a missing witness signature, witnesses not present at the same time, an unsigned page. And they fail in substance: wording that seems clear at the kitchen table and means two different things in the Master's office.

There is a rescue provision - a court can order the Master to accept a defective document if satisfied it was intended as the will - but that is a High Court application, brought after your death, at your family's expense, with no guaranteed outcome. Measured against the fixed fee for having it drafted properly, signed properly and kept safely, the saving on a DIY will is the most expensive saving in the law.

This is the classic homemade-will disaster. A person who witnesses a will - or whose spouse witnesses it, or who writes any of it out by hand - is disqualified from inheriting under it. And the Act goes further than people expect: being named as executor, trustee or guardian counts as a benefit too.

There are escape routes - a court can declare the person competent if there was no fraud or undue influence, the disqualification is softened to the intestate share in some cases, and it falls away entirely where two other independent witnesses signed - but every escape route is litigation. The rule at the signing table is simple: witnesses take nothing under the will, and no beneficiary touches a pen except the testator.

Divorce first, because the Act sets a trap in it. For three months after your divorce, your old will is read as if your former spouse had died before you - the law gives you a grace period to make a new will. The one exception: where the will itself makes plain that the former spouse is to inherit despite the divorce. But if you die more than three months after the divorce with the old will still standing, it operates exactly as written, and your former spouse inherits whatever it gives them. Every year, estates pay out to ex-spouses because a will was never updated. Update it with the decree, not someday.

Marriage is the opposite trap: it changes your will not at all. The will you signed as a single person stands as written on your wedding day - though if you marry in community of property, your will can from then on dispose only of your half of the joint estate. Marriage, divorce, births, deaths, a business acquired or sold - each is a reason to have the will reviewed, and reviewing and amending wills is part of what we do.

Your executor is the person who must actually do everything your will promises - report the estate to the Master, gather the assets, pay the debts, transfer the inheritances. Choose someone competent and willing, and name a substitute. The firm can be appointed as executor in your will, or as agent to assist a family member you appoint, so that the person you trust has professional hands to lean on.

Keep the original where it will be found and cannot be lost: the Master requires the original document, and a lost original means litigation at the worst possible time. We keep our clients' original wills in safe custody, at no charge, and you hold a copy noting where the original lies.

A fixed fee of R800 for a standard will, and R1,600 for a will containing a testamentary trust - the right choice for parents of minor children. Either way it is drafted with you, executed properly under our supervision so the formalities are beyond attack, and the original kept in safe custody. No hourly surprises. Where an estate is genuinely complex - business interests, offshore assets - we will say so before any work begins, and quote.

A day to a week, from the consultation in which we take your instructions to a signed will in safe custody. If there is genuine urgency - illness, imminent travel - tell us when you phone and we will tell you honestly what can be done, and how quickly.

We would prefer it. A great deal is lost over email, and these are matters where sitting across a desk from one another makes a real difference. Where the distance genuinely makes that impractical, we consult by video call instead.

No. We advise in consultation. A message is the right way to arrange an appointment, but not the right way to receive advice on something this consequential.

Whatever paperwork you have - statements, letters of demand, summonses, court papers. If you have nothing, come anyway. It is better to start the conversation than to delay it until the file is tidy.

Telephone 087 133 3595, or send the short form on this site. We will contact you to arrange a date and time.