What is the Biggest Mistake with Wills?

The single biggest mistake with wills in South Africa is failing to execute the will in line with the Wills Act 7 of 1953 — the testator must sign the document in the presence of at least two competent witnesses, who must then sign in the presence of the testator and of each other; a will that does not meet these formalities is generally invalid, regardless of how clearly the testator’s intentions are expressed. The second most common mistake is treating a will as a “set and forget” document: marriage revokes a prior will (with limited exceptions) and life events such as divorce, the birth of further children, or a change in financial circumstances all require the will to be reviewed and updated. Other common mistakes — leaving out an executor nomination, describing beneficiaries ambiguously, and failing to plan for the liquidity and estate-duty consequences of the bequests — typically flow from these two root causes.

Why Will Mistakes Matter in South Africa

A will that fails on a formality leaves the estate to be dealt with under the Intestate Succession Act 81 of 1987 — the testator’s actual intentions are ignored entirely. The Master of the High Court, acting under the Administration of Estates Act 66 of 1965, will not validate a defective will after the testator’s death; the estate is administered as if no will existed at all.

The cost of rectifying a defective will posthumously — court applications, family disputes, executor substitution, and intestate-heir tracing — typically far exceeds the cost of having a competent attorney draft and execute the will correctly in the first place. For most testators, the difference between a valid will and a defective one is the difference between a settled estate and a drawn-out legal fight among the heirs.

The Biggest Mistake: Failing to Execute the Will Properly

Section 2 of the Wills Act 7 of 1953 requires the will to be signed by the testator in the presence of at least two competent witnesses. The witnesses must then sign the will in the presence of the testator and in the presence of each other. A “competent witness” excludes any person who is a beneficiary under the will (and generally the testator’s spouse) — a beneficiary or spouse who witnesses the will generally forfeits the benefit.

Informal signing at home with neighbours who happen to be in the room, or signing before the witnesses are present, invalidates the document even if the testator’s intentions are unambiguous. The will must be in writing; a video-recorded verbal “will” is not recognised under the Wills Act, with only a narrow carve-out for soldiers on actual military service.

Execution Requirement	What the Wills Act Demands
Testator’s signature	Must be made in the presence of two or more competent witnesses
Witness signatures	Each witness must sign in the presence of the testator and in the presence of each other
Witness capacity	Must be competent — a beneficiary or (generally) the testator’s spouse is disqualified
Form of will	Must be in writing; verbal or video “wills” are not recognised (limited military exception aside)
Physical document	Pages must be bound or fastened securely so that no page can be substituted or removed

The Department of Justice and Constitutional Development confirms this two-witness requirement in its public guidance on the Master’s office practice: each will must be signed by the testator in the presence of two or more competent witnesses, who must then attest and sign in the presence of the testator.

The Second-Biggest Mistake: Not Updating the Will

Section 2A of the Wills Act provides that marriage revokes any prior will, subject to limited exceptions (an explicit ante-nuptial continuation clause, for example). Divorce does not automatically revoke a will, but the executor must generally ignore a bequest to the former spouse unless the will is updated.

The birth of a child, the acquisition of new assets, the sale of a business, and changes in personal relationships all create new drafting needs. A “DIY” will drafted in a single afternoon when the testator was young often fails to address the financial and family circumstances of someone twenty years older. Treating the will as a static document is one of the most reliable ways for it to fall out of step with the testator’s real intentions.

Life Events That Should Trigger a Will Review

• Marriage or the conclusion of an ante-nuptial contract
• Divorce or the death of a spouse
• The birth or adoption of a child
• The death or incapacity of a nominated executor or beneficiary
• The acquisition or sale of a major asset, including immovable property or a business interest
• A material change in financial circumstances (inheritance received, business sale, policy payout)
• Moving to a different province, especially where the Master’s office seat changes

Executor Mistakes

Failing to nominate an executor, or naming only one executor without an alternative, can leave the estate in limbo if the nominated executor predeceases the testator or is unwilling to act. Naming multiple executors without specifying whether they may act jointly or severally creates ambiguity at the Master’s office and can delay the issue of letters of executorship.

A minor cannot act as executor until reaching majority and qualifying with the Master. Choosing an executor who lives far from the Master’s office handling the estate creates practical delays in reporting and administration — a real consideration in a country where Master’s offices are seated at specific High Court divisions.

Beneficiary Description Mistakes

Vague descriptions — “my children” when some have predeceased, “my house” when the testator owns more than one property — lead to disputes and court applications to interpret the will. Failing to substitute beneficiaries creates a parallel problem: if a primary beneficiary predeceases the testator and no substitute is named, the gift may lapse or fall into the residue of the estate, which is often not what the testator intended.

The will should also address the accrual position where a beneficiary is also an heir in terms of a joint estate or has an accrual claim against the estate. These are typically the kinds of issues a non-specialist drafter overlooks entirely.

Liquidity and Estate-Duty Oversights

A will that bequeaths specific assets but does not address how estate debts, executor’s remuneration, and estate duty will be funded can force the sale of those very assets to cover liabilities. The executor is entitled to a fee under the Executors’ Remuneration Tariff; drafting the will to provide for this avoids later disputes.

Estate duty under the Estate Duty Act 45 of 1955 is levied above the current abatement threshold; a will that ignores this may leave beneficiaries with an unexpected tax liability. Donations made close to death may be clawed back under the donation-based estate duty calculation if not considered when the will is drafted.

Common Liquidity / Tax Oversight	Consequence
Specific bequests with no provision for debts and duty	Forced sale of bequeathed assets to cover liabilities
No provision for executor’s remuneration	Later dispute over fees against the estate
Estate duty position ignored	Beneficiaries face an unanticipated tax liability
Donations within three years of death not considered	Clawed back into the estate for duty purposes

Formalities People Often Get Wrong

Some drafting and execution errors are technically mundane but invalidate the will nonetheless. A stapled or loose-leaf document where pages can be removed does not satisfy the Master, who requires pages to be bound or fastened securely so that no page can be substituted. Signing with an “X” or mark requires the special witnessing procedure the Wills Act prescribes for marks, and skipping that procedure renders the will defective.

Amendments to an existing will — for example, a change of executor — must be witnessed in the same way as the original will; dating the will inconsistently with later amendments is a common source of doubt about which version controls. Finally, storing the original will in a place that risks loss or destruction (fire, flood, misplacement) leaves the Master to work from a lodged copy if one was filed, or, more often, to administer the estate as intestate because no valid original can be produced.

How to Avoid the Biggest Mistakes

Have the will drafted by an admitted attorney familiar with the Wills Act 7 of 1953 and the Master’s office process. Use the formal execution procedure: sign in front of two competent, non-beneficiary witnesses, and have them sign in turn in the testator’s presence. Review the will after every major life event — marriage, divorce, the birth of a child, the death of a beneficiary or executor, the acquisition or sale of a major asset, or a change in business interests.

Store the original will in a safe, fire- and water-resistant location (the attorney’s custody, a safe deposit box, or with the Master) and tell the executor where to find it. Discuss liquidity and tax planning with the attorney before signing, particularly where the estate includes property, a business, or assets above the abatement threshold.

Frequently Asked Questions

What is the single biggest mistake people make with wills in South Africa?

The most common and most consequential mistake is failing to execute the will in line with the Wills Act 7 of 1953 — signing without two competent witnesses, or signing outside the presence of the witnesses, generally invalidates the document. The estate is then administered under intestate succession regardless of how clearly the testator’s intentions were expressed on the page.

Does marriage automatically revoke an existing will in South Africa?

Yes, with limited exceptions. Section 2A of the Wills Act provides that marriage revokes any prior will, unless the will contains an explicit continuation clause entered into in anticipation of the marriage. A will drafted before marriage should therefore be reviewed and re-executed afterwards.

Can a beneficiary witness a will?

No — the Wills Act disqualifies a beneficiary (and generally the testator’s spouse) from being a competent witness. A beneficiary who does sign as a witness generally forfeits the benefit conferred by the will, so witnesses should always be people who are not named as heirs.

How often should a will be reviewed?

As a rule, a will should be reviewed after any major life event — marriage, divorce, the birth of a child, the death of a beneficiary or executor, the acquisition or sale of a major asset, or a change in business interests. A formal review every three to five years even without a triggering event is good practice.

Where should the original will be kept?

The original will should be stored in a safe, fire- and water-resistant location — commonly with the attorney who drafted it, in a bank’s safe deposit box, or lodged with the Master of the High Court. Lodging with the Master is optional but provides a secure official record. The executor should always know where to find it without delay.

Is a verbal or video-recorded will valid in South Africa?

Generally no. The Wills Act requires a written document signed and witnessed in the formal way described above. A narrow exception exists for soldiers on actual military service, but a casual video-recorded “will” is not recognised and the estate would be dealt with as intestate.

If you are drafting a new will or are unsure whether your existing will is still valid after a life change, Burger Huyser Attorneys‘ Wills & Estates team can review, draft, and properly execute your will to meet the formalities of the Wills Act 7 of 1953. The firm’s head office in Linden, Randburg (49 First Avenue, 011 888 0246) is the principal point of contact, with branches across Gauteng including Centurion (012 644 4990), Pretoria (012 471 5700), and Bedfordview (011 201 7190). Burger Huyser Attorneys holds a 4.8/5 average across 250+ Google reviews (Trustindex verified — “Top Rated Law Firm in South Africa”) and offers personalised, plain-spoken advice on wills, deceased estate administration, and trust formation.