It was National Wills Week for 2025 in South Africa from 15 to 19 September. The purpose of Wills Week is to educate South Africans about the importance of having a Will and to encourage them to draft a will.
The importance of having a Will in South Africa:
Your wishes as to where your assets should go, will be honored if you have a valid will in place. If you do not have a valid will your estate will go to your intestate heirs in terms of the Intestate Succession Act, and not necessarily to the persons who you would have wanted to benefit after your death. If you leave a spouse and children, they will each receive a share of your estate.
Furthermore, this may have unintended estate duty and capital gains tax consequences in your estate. If you left your entire estate to your spouse, there would have been no estate duty or capital gains tax on your estate assets at your death as first dying spouse. The values now going to your children will be subject to estate duty, if more in value that the R3.5 million you have as a deduction for estate duty purposes. Assets bequeathed to your children will also be subject to capital gains tax in your estate.
If your children are minors, their inheritance will be transferred to the Guardian’s Fund which is managed by the state, in the absence of a will directing that their inheritance has to be managed for their benefit by their legal guardian or by the trustees of a trust. Their guardians will have no control over or say in how the funds are invested and managed in the Guardian’s Fund, and they will have no access to benefits therefrom for their schooling and other expenses until they are 18 years old. They can apply to receive their inheritance from the Guardian’s Fund when they are 18 years old. At 18 a child is not necessarily financially savvy to manage an inheritance responsibly. In a will, to the contrary, one can set up a testamentary trust and nominate trustees to manage the inheritance of such a minor in the trust until a later age, say 21, 25 or 30. The trustees can apply the benefits for the child’s education costs and general maintenance before they reach the specified age, and at that age transfer the balance of the trust fund to them. You can stipulate in your will that the funds have to be invested with your trusted investment advisor.
Without a Will no executor is nominated by you and you do not exempt the executor from providing security for doing their job, which is a clause that would have been in your valid will, if you had one. An executor has to now be appointed by the Master of the High Court. Your closest family members can make nominations of who they would want to be appointed. Only closest family members, and in most cases only a surviving spouse and children, will be exempt from providing security, and anyone else so appointed may be required to take out a bond of security equal to the value of the estate assets, which can come with high premiums payable by the executor. You may find in this case that you will struggle to find an executor willing to do so.
You can nominate a legal guardian to your minor children in a valid will, in the instance where both biological parents who were the legal guardians are not there anymore. In the absence of a valid will with such a nomination of legal guardian, the courts in South Africa will appoint a legal guardian to your minor children. This person may not necessarily be the person that you would have preferred to look after your children. You also would have wanted to discuss the guardianship role with the nominated person(s) to make sure that they understand and know what your wishes were with regard to your children, such as where to educate them.
It is clear from the above examples that it is to the benefit of your loved ones and your heirs that you sign a valid will, and also keep it up to date from time to time and also as your circumstances change or a life event happens.
Please make use of Wills Week and the weeks to come to make sure that you have an up to date valid will in place. If you need any assistance in this regard, please contact Marteen Michau at marteen@fidelisvox.co.za or Tamryn de Villers at tamryn@fidelisvox.co.za.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)