Drafting a Will | How To Draft A Legal Will in South Africa?

To draft a legally valid will in South Africa, the testator must be at least 16 years old and of “sound mind,” must sign the will at the end in the presence of two competent witnesses who in turn sign in the presence of the testator and of each other (section 2(1)(a) of the Wills Act 7 of 1953), and must nominate an executor who will report the estate to the Master of the High Court in the province where the testator was ordinarily resident at death. South African law gives the testator wide freedom to dispose of property, but that freedom is limited by the duty to provide for a surviving spouse (Maintenance of Surviving Spouses Act 27 of 1990) and minor or dependent children, and any clause that violates that duty can be set aside on application to court after death. A will does not need to be drafted by an attorney, but mistakes in capacity, witnessing, or wording are typically only discoverable after the testator has died — when they cannot be corrected.

The Legal Framework: The Wills Act 7 of 1953 and What Makes a Will Valid

South African succession is governed by a small, well-defined set of statutes. The Wills Act 7 of 1953 sets the formalities for executing and revoking a will. The Administration of Estates Act 66 of 1965 governs the Master’s office, the executor’s duties, and the approval of the liquidation and distribution account that settles an estate. The Intestate Succession Act 81 of 1987 determines who inherits when there is no valid will. The Maintenance of Surviving Spouses Act 27 of 1990 gives a surviving spouse a right to claim “reasonable provision” against the estate where the will has failed to do so. These four Acts, together with the common-law duty of support owed to minor or dependent children, form the backbone of every South African estate file.

The starting point is “freedom of testation” — a testator may leave their estate to anyone they choose, subject only to the statutory limits set out above. A will is, however, invalid if it does not meet the formalities in section 2(1) of the Wills Act; if the testator lacked testamentary capacity at the moment of signing; or if it was signed as a result of fraud, undue influence, or compulsion.

Burger Huyser Attorneys’ Wills & Estates practice works alongside the firm’s deceased-estate administration work — a Deceased Estate Administrator (Lance Pearson) coordinates the Master’s office file with the same attorneys who drafted the will, which closes the loop between drafting and winding up.

Who Can Make a Will (Testamentary Capacity)

The testator must be at least 16 years old (section 4 of the Wills Act) and of “sound mind.” In practice, “sound mind” means the testator is able, at the moment of signing, to understand:

• the nature of making a will;
• the assets being disposed of;
• the identity of the natural heirs and any claimants who might come forward after death; and
• the claims that might be made against the estate.

Capacity is judged at the moment of signing. A diagnosis of dementia does not automatically invalidate a will if the testator had capacity on the day the will was executed; conversely, a “lucid interval” argument rarely succeeds without contemporaneous medical evidence on the file. Where capacity is uncertain, a brief medical assessment on the day of execution — and a note from the assessing doctor — is strong evidence later.

The witnesses must also be competent. A competent witness is at least 14 years old (section 1 of the Wills Act) and able to testify in court to what they saw at execution. The spouse of a witness, and the spouse of a beneficiary, are not competent witnesses in terms of section 4 bis. A person who is blind, illiterate, or physically unable to sign can still execute a valid will with the assistance of another person signing in their presence and by their direction — sections 2(2) and 2(3) set out the additional formalities.

The Formalities of a Valid Will — Step by Step

Section 2(1) of the Wills Act sets out the execution sequence. The six steps below are the route a court will look for when assessing whether a will was duly executed.

1. Draft the will in writing. Typed or handwritten (“holographic”) wills are both permitted under the Wills Act; a holographic will is one entirely in the testator’s own handwriting.
2. Sign at the end. The testator must sign at the end of the will, in the presence of two competent witnesses simultaneously present (section 2(1)(a)). Placing the signature anywhere other than at the end is a common defect.
3. Witnesses sign in the testator’s presence and in each other’s presence. Section 2(1)(a)(ii) requires that each witness sign “in the presence of the testator and of the other witness.” The three signatures can be in any order but all three people must be in the same room when signing.
4. Witnesses attest in the prescribed form. Section 2(1)(b) requires a standard attestation clause confirming the formalities were observed. Using this clause creates a rebuttable presumption that the will was duly executed, shifting the burden of proof onto anyone alleging it was not.
5. Identify the testator and witnesses clearly. Full names, ID numbers, and dates prevent later disputes about who signed and in what order.
6. Date the will. There is no statutory requirement to date a will, but a dated will resolves disputes about which version is the “last will” when more than one exists.

What a Will Should Contain

A correctly drafted will carries more than the signature and the two-witness attestation. The clauses listed below are the working components of any will that has to hold up under scrutiny after death.

• Identification of the testator — full names, ID number, and a recital that the testator is of sound mind and acting freely.
• Revocation of previous wills — a clause stating this will revokes all earlier wills and codicils prevents accidental partial intestacy.
• Appointment of an executor — the executor is the person authorised to report the estate to the Master and wind it up. Section 102 of the Administration of Estates Act sets out who may be appointed; the Master must formally confirm the appointment by issuing Letters of Executory.
• Specific bequests — particular items of property (a house, a vehicle, jewellery) left to named beneficiaries.
• Residuary estate — everything not specifically bequeathed, expressed as a percentage or share. An unstated residuary is a frequent cause of partial intestacy.
• Substitution and accretion clauses — what happens if a beneficiary predeceases the testator (substitution) or refuses the inheritance (accresces).

Common Drafting Situations

The following clauses come up in most South African estates:

Situation	Drafting point
Children under 18	Consider a testamentary trust structure with named trustees rather than direct inheritance, especially where the beneficiary is a minor.
Second marriages	A will made before a marriage is automatically revoked (section 2A of the Wills Act) unless it expressly contemplates the marriage; re-execute after each marriage.
Accrual claims	Accrual under the Matrimonial Property Act 84 of 1988 is calculated at dissolution of marriage by death; a will cannot pre-empt the accrual claim itself, but the size of the estate the will operates on is reduced by the accrual claim.
Business interests	A clause authorising the executor to sell, continue, or wind up a business avoids later litigation when the heirs disagree.

Freedom of Testation and Its Limits

A testator may disinherit a child or spouse entirely — but if the will fails to make “reasonable provision” for a surviving spouse, or for a child who, on the date of the testator’s death, was a minor or was permanently unable to support themselves, the Maintenance of Surviving Spouses Act 27 of 1990 (for spouses) and the common-law duty of support (for children) allow a claim against the estate. The will itself is not reviewed for “fairness” — it is reviewed on application by a claimant who can show that the testator did not make reasonable provision.

A claim must be brought within a limited window after death. Under the Maintenance of Surviving Spouses Act the window is six months from the date of the Master’s first notice to creditors and heirs (extendable in proper cases). Successful claims can reduce or absorb specific bequests and force the sale of estate assets. Where the matrimonial property regime is out of community of property with accrual, the accrual claim reduces the size of the estate the will operates on before the will is read at all.

Where the will cuts across a maintenance claim or a matrimonial property regime, get advice before signing — a clause that distributes every asset in the will can be unwound by a single application to the provincial division of the High Court. Burger Huyser Attorneys’ Wills & Estates team drafts with the dispute in mind, not just the bequest.

Common Mistakes That Invalidate a Will

The defects below are the ones that most often surface in contested estates. Each can be anticipated at drafting time.

Mistake	What it does	Statutory hook
Witnessing failure	Witnesses not all present at the same time, or signing at separate times — the will is presumed not duly executed and the presumption must be rebutted on evidence.	Section 2(1)(a)(ii)
Beneficiary as witness	If a beneficiary (or the spouse of a beneficiary) signs as a witness, the bequest to that beneficiary is void, but the rest of the will is still valid.	Section 4A
Testator not signing at the end	Initials, a thumbprint, or a signature in the body of the will is a defect, though not always fatal.	Section 2(1)(a)
DIY templates, video or voice “wills”	Typed templates not properly witnessed, video wills (no statutory recognition), and voice-recorded instructions do not substitute for a properly executed section 2(1) will.	Section 2(1)
Marriage after the will	Section 2A revokes a will on subsequent marriage unless the will expressly states it was made in contemplation of that specific marriage.	Section 2A

Reviewing and Updating a Will

A will is a snapshot — circumstances change and the will must change with them. Triggers for review include marriage, divorce, birth of a child, death of a beneficiary or executor, a change in the matrimonial property regime, the acquisition or sale of a major asset, and at least every three to five years as a general practice.

A codicil (a short amending document) can update a single clause without re-executing the entire will, but it must itself be executed with the section 2(1) formalities. Re-execution of a fresh will is usually simpler and safer than multiple codicils; the new will must revoke all prior wills in clear terms.

Where a will touches a trust, an antenuptial contract, or a business that has changed materially since the last draft, the Deceased Estate Administrator at Burger Huyser (Lance Pearson) can coordinate a meeting alongside one of the firm’s Family Law or Commercial attorneys in the same branch — Sandton, Roodepoort, Bedfordview, Centurion, Pretoria, Alberton or Midrand — so the will, the trust, and the estate plan move together rather than drifting apart.

DIY Will vs Attorney-Drafted Will

The Wills Act does not require an attorney to draft a will. A simple will with straightforward bequests (one spouse, children named explicitly, one property, no business or trust) can be executed without legal assistance — handwritten or typed, signed in the presence of two competent witnesses, with a properly worded attestation clause.

An attorney adds real value when the estate is not simple. The following situations, individually or together, justify professional drafting:

• Business or farming operation requiring a buy-and-sell clause or an executor’s authority to continue trading;
• Assets in another country triggering cross-border succession and tax questions;
• Blended families, prior marriages, or children from more than one relationship, where maintenance-claim exposure and accrual interact;
• Minor or vulnerable beneficiaries, where a testamentary trust is required;
• Existing trust structures that the will needs to coordinate with;
• Matrimonial property regimes that materially change the estate (accrual, antenuptial contract exclusions).

Commercial will-drafting platforms sell speed: they generate a template, often with storage and updates, in a single session. They are useful for simple estates but typically do not advise on capacity, maintenance-claim exposure, the interaction with an antenuptial contract, cross-border tax, or the structure of a business interest passing to heirs. An attorney drafting a will is bought for the advice, not the document.

What Happens After Death: The Master’s Office in Brief

The executor reports the estate to the Master of the High Court in the province where the deceased was ordinarily resident at death (section 4 of the Administration of Estates Act). The Master confirms the executor’s appointment, issues the Letters of Executory, and approves the liquidation and distribution account (the final account that settles the estate) — see section 35 of the Administration of Estates Act.

Step	Where it happens	Authority
Reporting the estate	Master’s office in the province of the deceased’s last ordinary residence (Johannesburg, Pretoria, Cape Town, Durban, Bloemfontein, Pietermaritzburg, Grahamstown, Kimberley, or Polokwane, depending on the address).	Administration of Estates Act, section 4
Confirmation of executor; issuing Letters of Executory	Master’s office	Administration of Estates Act, section 102
Approval of the liquidation and distribution account	Master’s office, after advertisement and inspection	Administration of Estates Act, section 35
Estate duty assessment	SARS, before the Master releases the estate for final distribution	Estate duty administered at 20% on the dutiable amount above R3.5 million (2026 threshold), reduced by the primary abatement

A will is the trigger for the entire administrative process. If there is no valid will, the Intestate Succession Act 81 of 1987 determines who inherits, and the Master appoints an administrator rather than confirming an executor named in a will.

Burger Huyser Attorneys’ Deceased Estate Administrator coordinates reporting across the Master’s offices in Gauteng, including Johannesburg and Pretoria. Where a will is contested on the grounds of capacity, undue influence, or failure to make reasonable provision for a spouse or child, the matter escalates to the provincial or local division of the High Court that has jurisdiction over the Master’s file — typically the division sitting in the Master’s office town — and is heard under the Administration of Estates Act and the Uniform Rules of Court.

Drafting a will is straightforward when the estate is simple, and a mistake during drafting can be hard to undo once it cannot be corrected. Burger Huyser Attorneys’ Wills & Estates team drafts wills, enduring powers of attorney, and testamentary trusts and administers deceased estates through the Master’s office in the province where the testator was ordinarily resident. The firm practises from Linden in Randburg with branches across Gauteng, including Sandton (011 253 3080), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Centurion (012 644 4990), Pretoria Menlyn (012 471 5700), Alberton (011 439 3990), and Midrand (010 022 4082); the team is set up to handle instructions across the province. Get in touch with the branch nearest to you to book a first conversation about your situation.

Frequently Asked Questions

Do I need an attorney to draft a will in South Africa?

No — the Wills Act 7 of 1953 does not require a will to be drafted by an attorney, and a straightforward will can be handwritten and signed in the presence of two competent witnesses using the section 2(1) formalities. An attorney is recommended where the estate includes a business, a trust, foreign assets, minor beneficiaries, or a blended family, because mistakes in capacity, witnessing, or wording usually only surface after the testator has died.

Can a will be written by hand?

Yes — the Wills Act 7 of 1953 allows a holographic will, which is a will entirely in the testator’s own handwriting. A holographic will still has to be signed by the testator and witnessed by two competent witnesses in the same way as a typed will, so it offers no shortcuts on the formalities — but it does remove any doubt about the testator’s intentions in contested estates.

What happens if I marry after I have signed my will?

Section 2A of the Wills Act 7 of 1953 automatically revokes a will on the testator’s subsequent marriage, unless the will expressly states that it was made in contemplation of that specific marriage. A new will should be executed as soon as is practical after the marriage — there is no legal requirement to do so on the day, but the gap creates exposure if the testator dies before re-executing.

Can I disinherit my child?

A testator may leave nothing to an adult child, but the duty of support at common law and the Maintenance of Surviving Spouses Act 27 of 1990 give a surviving spouse and any minor or dependent child a right to claim “reasonable provision” against the estate. A claim is brought to the provincial division of the High Court that has jurisdiction over the Master’s file, typically within six months of the Master’s first notice to creditors and heirs, unless extended; if the court finds that the will failed to make reasonable provision, it can transfer assets or order payment out of the estate to the claimant.

How long is a will valid for?

A will remains valid indefinitely until it is revoked by a subsequent will, by marriage (section 2A of the Wills Act), by a written act of destruction with the intention to revoke, or by a court order. A will should be reviewed after major life events — marriage, divorce, the birth of a child, the death of a beneficiary or executor, or the acquisition or disposal of a major asset — and at least every three to five years as a general rule, even when nothing material has changed.

What is estate duty, and when is it payable?

Estate duty is a SARS-administered tax levied on the dutiable estate of a deceased person, currently at a flat rate of 20% on the dutiable amount above R3.5 million in 2026, with a primary R3.5 million abatement and further rebates for property passing to a surviving spouse. It is payable by the executor before the liquidation and distribution account is approved, and the Master will not release the estate for final distribution until the duty has been paid or secured.