Drafting a Will | Step-by-Step Guide

A valid will in South Africa must be in writing, signed by the testator at the end of the document, and attested by two or more competent witnesses who are present at the same time and who also sign, in terms of section 2(1) of the Wills Act 7 of 1953. The testator must be 16 or older (younger only if married or with court approval) and must have the mental capacity to understand the nature of the document, the extent of their estate, and the claims of those who might expect to benefit. Drafting a will with a practising attorney typically takes a single consultation; a self-written will remains valid if the same formalities are met, but common mistakes — particularly beneficiary-witness conflicts and witnesses not being present together — regularly invalidate home-drafted wills and force the estate to follow the Intestate Succession Act 81 of 1987 instead.

Why Draft a Will: The Cost of Not Having One

A person who dies without a valid will is “intestate,” and the estate is then divided under the Intestate Succession Act 81 of 1987 on a fixed formula based on relationship rather than the deceased’s wishes. The consequences of intestacy are often exactly the opposite of what most people would choose for their own families. Three outcomes are common enough to be worth flagging on their own:

• A permanent life partner without a registered marriage or civil partnership is excluded from inheritance, even where the couple shared a home, children, and finances for decades.
• Assets may pass to family members the deceased would not have chosen — distant relatives who happen to fall within the intestate formula can inherit ahead of a long-term partner or a stepchild.
• Guardianship of minor children defaults to a family-member order rather than the parent’s nominated guardian, which can place the children with someone the deceased parent would not have selected.

A valid will reverses each of these outcomes. A testator can nominate heirs, appoint an executor, set out guardianship for minor children, and create testamentary trusts — none of which is possible on intestacy. The cost of not having a will is therefore not theoretical: it is the difference between the family structure the deceased actually wanted and one imposed by a default statutory formula. Burger Huyser Attorneys’ Wills & Estates practice sits inside a multi-specialist firm that handles family law, deceased estates, and High Court litigation in the same team, which is useful where a will has to interface with an antenuptial contract, a trust, or a contested estate.

The Legal Framework: The Wills Act 7 of 1953

The Wills Act 7 of 1953 is the controlling statute for the formal validity, capacity, and revocation of wills in South Africa. It applies uniformly across the country — there is no provincial variation in the formalities a will must meet, and a will drafted in one province is recognised in every other. Section 2(1) sets the formalities; section 2B and section 2C deal with revocation on marriage and divorce; section 4 deals with capacity; section 4A voids bequests to witnesses.

After death, the Administration of Estates Act 66 of 1965 governs the Master’s office process for reporting and administering deceased estates. Estate duty, where applicable, is dealt with under the Estate Duty Act 45 of 1955; a properly drafted will can reduce estate-duty exposure through structuring (for example, bequests to a surviving spouse are generally exempt from estate duty in terms of section 4q of that Act). The three statutes operate together: the Wills Act governs how the document is made and what it does, the Administration of Estates Act governs what happens at the Master’s office, and the Estate Duty Act governs how the residue is taxed. Conrad Ash and Another v Woodart Three (Pty) Ltd t/a The Flight Shop and Another confirmed that the Master’s supervisory role under the Administration of Estates Act is administrative rather than adjudicative, which is why disputes about a will’s validity are ultimately decided in the High Court, not the Master’s office.

Who Can Make a Will: Capacity Rules

Section 4 of the Wills Act sets the capacity threshold. The testator must be 16 or older, or younger if married or with court approval. Capacity is not just age — it is a functional test. The testator must understand:

• The nature of the act — that they are making a will that will dispose of their estate after death;
• The extent of their estate — broadly, what they own and what it is worth; and
• The claims of those who might expect to benefit — the spouse, children, dependants, and other family members who would ordinarily inherit.

A person with impaired mental capacity may still execute a valid will during a lucid interval if they meet the same criteria at the time of signing. Capacity is judged at the moment of execution, not at any later date, and the burden of proving lack of capacity falls on the person challenging the will. Where there is doubt — for example, where the testator has a diagnosis of dementia but signs the will on a good day — the safer course is to obtain a contemporaneous medical assessment confirming capacity, and to have the attorney record the assessment in the will-drafting file. This is also where the firm’s broader litigation capacity matters: a will drafted in circumstances where capacity is contested at the time of signing may be challenged after death, and a firm that handles both the drafting and the contested estates work is well placed to anticipate the issues.

Step-by-Step: Drafting a Valid Will

The drafting process can be broken into seven steps. None of them is technically difficult; the risk is that any one of them is missed.

1. Decide on your beneficiaries, your executor, and any specific bequests. Beneficiaries are the people who will inherit. Specific bequests are particular items or percentages going to particular people — a house to one child, a fixed sum to a sibling, jewellery to a godchild. The residue clause covers everything not specifically bequeathed.
2. Choose your executor. The executor administers the estate after death: reporting to the Master’s office, gathering assets, paying debts, and distributing to beneficiaries. A trusted family member or friend is common for straightforward estates; a professional executor (an attorney, a trust company, or a nominated individual) is appropriate where the estate is more complex, where there is likely to be family conflict, or where the nominated family member lacks the time or temperament.
3. Engage an attorney (recommended) or draft the will yourself. Either instruct an attorney to draft the will or draft it yourself, ensuring the document meets the section 2(1) formalities. Self-drafted wills are valid in South Africa but carry a higher risk of formal defect.
4. Sign the will at the end, in the presence of two competent witnesses. The testator signs at the end of the document. Two or more witnesses are present together, watch the testator sign, and then sign in turn. The witnesses do not need to read the will, but they must be able to attest that the testator signed in their presence.
5. Confirm no beneficiary (or the spouse of a beneficiary) is a witness. Section 4A of the Wills Act voids any bequest to a witness. A witness who is also a beneficiary loses the bequest; the rest of the will ordinarily survives.
6. Store the original will safely. Typical options are with the drafting attorney, with the Master’s office (which offers a voluntary safekeeping service), or in a secure deposit box. Critically, tell the executor where the original is — a will that cannot be found at the time of death is treated as if it had been revoked.
7. Review and update the will after major life events. Marriage, divorce, the birth of a child, the death of a beneficiary, or a material change in assets are all triggers for review. A will that is never updated gradually drifts away from the family structure it was meant to reflect.

Formalities That Must Be Met (Section 2(1) of the Wills Act)

The section 2(1) formalities are the only rules that determine whether a will is formally valid. They are short and they are absolute:

Requirement	What it means in practice
In writing	A handwritten or typed document; oral wills are not valid in South Africa.
Signed by the testator	The testator’s signature goes at the end of the document.
Two competent witnesses	Two or more witnesses present together who watch the testator sign and who then sign themselves.
Independent witnesses	Witnesses must not be beneficiaries, and must not be the spouses of beneficiaries — section 4A voids any bequest to a witness.

There is no requirement that the will be notarised, that it be on a specific form, or that it be drafted by an attorney. There is a requirement that the testator’s signature is at the end of the document — a signature anywhere else is treated as no signature at all, and the will may fail. The attestation clause (the short paragraph at the end of the will that records that the formalities were observed) is not strictly required but is strongly recommended; in Bhamjee v Perunjee (1967) the court accepted that, although the will did not bear a formal attestation clause, the evidence showed the formalities had been complied with, which is precisely the dispute the clause is designed to avoid.

What to Include in the Will

A correctly drafted will typically contains the following clauses. Not all of them are strictly required, but each one addresses a discrete risk that arises when the will is silent.

• Identification of the testator — full names and ID number, to distinguish the document from any other will the testator may have signed.
• Revocation of all prior wills — a single line confirming that earlier wills are revoked, which prevents two wills being read together after death.
• Appointment of an executor, with or without a substitute, and (where relevant) a direction that the executor may act with sufficient powers to administer the estate.
• Specific bequests — particular items to particular people (a house, a car, jewellery, a fixed sum of money).
• Residuary clause — what happens to everything not specifically bequeathed. Without a residuary clause, property that is not specifically disposed of falls into intestacy.
• Guardianship nomination for minor children — the Master’s office has the final say but will ordinarily give weight to the deceased’s nominated guardian.
• Any testamentary trust provisions — for example, a trust for a minor beneficiary, with identified trustees and a distribution framework.
• Signature block for the testator and the witnesses, with the attestation clause recording that the formalities were observed.

Common Mistakes That Invalidate Wills

Invalid wills are not rare. The Master’s office and the courts see the same mistakes repeatedly, and almost all of them could have been prevented by a single consultation with an attorney. The five most common are:

• A beneficiary or their spouse serving as a witness — section 4A voids the bequest to the witness and, if the witness defect undermines the formalities, can compromise the will itself.
• Witnesses not present together when the testator signs — each witness must observe the testator sign and the testator must observe each witness sign, with all three in the same room.
• The testator’s signature placed anywhere other than at the end of the document — a signature in the middle of the will, or in a margin, is treated as no signature at all.
• Lack of capacity at the time of signing, or evidence of undue influence — both can be challenged on the validity of the will after death, and the cost of a contested estate is substantial.
• A self-written will that omits one of the section 2(1) formalities — typically the witnesses, which is the formality most often missed at home.

The recurring theme is that none of these mistakes is hard to avoid. They are all caught by an attorney who follows the section 2(1) process once. The cost of an attorney-drafted will is almost always less than the cost of rectifying a defective will after death, which is why the practical advice is to engage a professional for what is, on the face of it, a short document.

Updating and Revoking a Will

Wills are not one-off documents. They need to be reviewed as the family structure and the estate change. The four legal mechanisms for changing a will are:

• A new will with a revocation clause. A new will that includes a revocation clause automatically revokes all prior wills.
• Marriage. Marriage generally revokes an existing will under section 2B of the Wills Act, unless the will was made in contemplation of that marriage.
• Divorce. Divorce does not automatically revoke a will, but section 2C treats bequests to a divorced spouse as if that spouse had predeceased the testator.
• A codicil — an instrument that amends part of a will without rewriting it entirely, provided the same section 2(1) formalities are met.

A practical rule is to review the will after any of the following events: marriage, divorce, the birth of a child, the death of a beneficiary or executor, the acquisition or disposal of a major asset, or a change in the testator’s business interests. A will that is never updated will eventually be out of date. Burger Huyser Attorneys builds ongoing will review into its Wills & Estates service so that the document keeps pace with the family and the estate.

After the Will Is Drafted: The Master’s Office Role

The Master’s office (a division of the High Court, with provincial seats in Pretoria, Johannesburg, Cape Town, and elsewhere) does not approve wills at the time of drafting — its role begins at death. The process after death is governed by the Administration of Estates Act 66 of 1965 and operates on a fixed timeline:

• Reporting the estate. Within 14 days of death, the executor appointed in the will must report the estate to the Master’s office of the province where the deceased was ordinarily resident.
• Letters of executorship. The Master’s office issues letters of executorship authorising the executor to administer the estate — to gather assets, pay debts, and distribute to beneficiaries.
• Voluntary safekeeping during lifetime. Wills can be deposited with the Master’s office during the testator’s lifetime as a voluntary safekeeping service, which is useful to prevent loss or concealment after death.

For testators and estates in Gauteng, the relevant Master’s seats are the Master’s office at the Gauteng Division in Pretoria and the Master’s office at the Gauteng Local Division in Johannesburg. The Master of the High Court’s national site (justice.gov.za/master/wills.html) is the authoritative reference for current reporting deadlines, lodgement forms, and any updates to the Administration of Estates Act process. The substantive law governing the formal validity of a will is the Wills Act 7 of 1953, which applies uniformly across the country — there is no provincial variation in the formalities a will must meet, and a will drafted in one province is recognised in every other.

Drafting a Will in South Africa: National Formalities and the Master’s Office Process

Frequently Asked Questions

Can I write my own will in South Africa?

Yes — South African law allows a self-written (holographic) will provided it meets the section 2(1) formalities of the Wills Act 7 of 1953: in writing, signed by the testator, and witnessed by two competent witnesses who are present together. Home-drafted wills are, however, vulnerable to formal defect, and a brief consultation with an attorney reduces the risk of mistakes that lead to intestacy.

How much does it cost to have a will drafted by an attorney?

Fees depend on the complexity of the estate and the will — a straightforward will for an individual with a single estate and standard bequests costs meaningfully less than a will with testamentary trusts, business interests, or international assets. Burger Huyser Attorneys quotes on a per-file basis after the first consultation.

Where should I keep my original will?

Common options include with the drafting attorney, in a bank safety deposit box, with the Master’s office (which offers a voluntary safekeeping service), or in a secure location at home. Tell your executor where the original is — a will that cannot be found at the time of death is treated as if it had been revoked.

Does marriage cancel my existing will?

Generally yes — marriage revokes an existing will under section 2B of the Wills Act 7 of 1953 unless the will was specifically drafted in contemplation of that marriage. A new will should be drafted promptly after marriage to reflect the change in family structure.

What happens if I die without a will?

Your estate is distributed under the Intestate Succession Act 81 of 1987 on a fixed formula based on relationship. A registered spouse and children typically share the estate, but an unmarried life partner is excluded from inheritance, and you lose the ability to nominate a guardian for minor children or to choose who administers the estate.

How do I update my will without rewriting the whole thing?

A codicil can amend part of a will without rewriting it, provided it is signed and witnessed in the same way as the original will. Material changes — a new marriage, a new child, or a new asset class — usually warrant a full rewrite for clarity.

If you are drafting a will — for the first time or as an update — Burger Huyser Attorneys’ Wills & Estates team can guide you through the process from intake to signed document, with appointments available at the Linden head office (011 888 0246) and across the firm’s Gauteng branches. The same team handles estate administration, powers of attorney, and enduring guardianship, so the file stays with one team from drafting through to reporting the estate to the Master’s office. Bring a list of your assets and beneficiaries to the first consultation; the firm will quote on a per-file basis once the scope is clear. Burger Huyser carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).