Download Last Will and Testament Template - FormFactory

Download Last Will and Testament Template

What is a Will and Testament?

The definition of a Last Will and Testament is a legal document containing the wishes of the testator as to what should happen to his property and dependants after he dies. The testator also names an executor – who will administer the estate – in his Will.

In other words, the purpose of a Last Will and Testament is to ensure that everything you have accumulated throughout your life are distributed according to your wishes when you are no longer around. It also makes provisions for guardianship of minor children in case a parent dies.

The word “testament” literally means “an act by which a person determines the disposition of his or her property after death,” according to the Merriam-Webster dictionary.

South African law on a Last Will and Testament

A Will is governed by the Wills Act 7 of 1953 in South Africa. Any person over the age of 16 can write a Last Will and Testament. The act specifies the following requirements for a Last Will and Testament to be valid:

  • Obviously, the Will has to be signed by the testator. Therefore a Will has to be written (by hand or typed) and cannot be verbal. Each page of the Will must be signed at the bottom by the testator and the last page must be signed directly below the last line.
  • The testator must sign the will in the presence of two witnesses – who must be present at the same time. The witnesses must sign the Will at the end of the document, but it is good practice to let all parties sign each page in full. Witnesses must be at least 14 years old.
  • The Will cannot be written or witnessed by beneficiaries in the Will – or else they will be disqualified from inheriting. The executor can also not sign as a witness.
  • In the event that the testator is unable sign the Will (due to illiteracy or incapacity), the testator can either sign with a mark or fingerprint; or he can elect someone to sign on his behalf. In these instances the signing of the Will must be done in the presence of both witnesses and a commissioner of oaths – who must certify the Will and sign each page.
  • The testator must have been mentally capable of understanding the consequences of drafting the Will. Wills drafted while the testator is under the influence or under duress are not valid.
  • A Will does not have to be dated to be valid. However, dating the Will is highly recommended to avoid confusion if more than one will exists.

How to write a Last Will and Testament

Because it is a legal document, it is advisable to seek the services of a professional to draw up a Testament.  However, writing a Will does not have to be complicated. The freedom of testation principal grants a testator extensive power to draw up a Will.

You can download a last will and testament form below.

When deciding to draw up a Will and Testament, the following aspects need to be considered and explained in the Will:

  • Beneficiaries – Decide who will inherit your property and how the property will be divided among beneficiaries. Include the full names and ID numbers of all beneficiaries.
  • Executor – Specify the full name and ID number of the person you appoint as the executor of the estate. The executor will handle all legal and financial obligations of the estate.
  • Guardianship – If you have minor children, decide in whose custody you want your children to be placed in should something happen to you. Include his/her full name, ID number and contact details. Do not just assume the spouse will be around to take care of the kids. A provision must be made in your Will and Testament in case your spouse also dies.
  • Charitable donations – Note any property you would like to donate to non-profit organisations.
  • Burial/cremation – Decide what you would like to happen to your remains. You can include your wishes in your Will.
  • Marital status and details – Attach documents confirming your marital status (i.e. marriage certificate or decree of divorce). Also state whether you are married in or out of community of property in your Last Will and Testament. The Will only applies to half of the estate if you are married in community of property.

A joint Last Will and Testament

Any two people can have a joint Last Will, although it is most common for a married couple to have a joint Last Will and Testament. A married couple can have a joint will irrespective of if they are married in community of property or out of community of property.

A joint last will and testament merges the individual wishes of two testators into one document. It is not a binding contract between the parties and either of the testators can cancel or amend his/her part of the Will – even after the death of a testator.

The exception is when the testators stated in the joint will that they would like to mass their individual estates into one. If the legal principal of massing applies, a surviving spouse cannot amend the contents of the will after the death of the other testator.

What if I die without a will?

Unfortunately, many people die without a valid Will. This is mainly due to ignorance about the repercussions for those left behind by the deceased.

The estate of a South African resident who died intestate is subject to the Intestate Succession Act 81 of 1987. In terms of the act, the estate of a deceased person without a Will will be divided between that person’s spouse and blood descendants (which includes children born out of wedlock and adopted children). If the deceased has no spouse or children, the estate will be divided between the deceased’s parents or their descendants.

Even if that is what the deceased wished to happen, the division of assets can cause family disputes. The family might have to sell the assets first to receive their share of the estate, which can incur additional costs.

When a person dies intestate it is up the Master of the High Court to appoint an executor to administer the estate. It can take years to finalise the estate of a person who died without a Last Will & Testament.

The court will also have the discretion to choose a guardian for the minor children of a parent who died without a Will. Without the provision of a testamentary trust in a Will and Testament, the inheritance of the minor child/children will be placed in the government Guardian’s Fund – receiving no interest – until the child/children are 18 years old.

You can download a free, printable Last Will & Testament template below as an example of the general format of a Last Will and Testament. Also see our blog post on common mistakes found in a Last Will and Testament.

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