What is a Will

What is a Will?

Basic definition

The most basic definition of a will (“Last Will and Testament”) is that it is a formal, signed, written document, in which a testator voluntarily sets out his instructions in unambiguous terms as to how his assets are to devolve following his death.  To expand upon the definition, a will therefore allows a testator to:

1. dispose of the whole or any part of his assets as he pleases;
2. institute heirs and appoint legatees, or their substitutes;
3. postpone the vesting of a bequest subject to a condition, a modus, a fideicommissum or a usufruct;
4. create trusts, appoint trustees and administrators and to regulate their powers;
5. appoint executors and guardians; and even
6. make a will without naming beneficiaries, such as one in which a previous will is revoked, an executor appointed, or an heir disinherited.

Its form

Although the form of a will is not prescribed by law, in practice and in precedent, depending on the circumstances, the usual order for the various clauses is as follows:

1. Declaration of testamentary intent.
2. Revocation of previous wills or testamentary writings.
3. Nomination of executors and/or trustees.
4. Legacies.
5. Bequest of residue of estate either absolutely, conditional or upon trust.
6. If a testamentary trust is created, the powers and duties of trustees and further terms and conditions applicable thereto.
7. Testimonium and attestation clause.

Execution

Once drawn according to the testator’s instructions, and approved by the testator, it should then be executed with all the formalities required by the Wills Act.

Drafting a will

Herein lies the rub, as the analysis above does not do justice to the nature, complexities and consequences of drafting a will.  Estate planning, wills, succession and the administration of deceased estates are inextricably linked to the proper drafting of a will. One in which the Supreme Court of appeal has expressed its concerns in this regard is Raubenheiner v Raubenheimer 2012 5 SA 290 (SCA) as follows:

“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. This is by no means a recent phenomenon. Some 60 years ago, in Ex Parte Kock NO, a high court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die . . . to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions’. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case.”

Sources: Law of South Africa Wills and Succession, Administration of Deceased Estates and Trusts (Volume 31 - Second Edition)