DRAFTING OF WILL

Professional will drafting in South Africa produces a written document that complies with the Wills Act 7 of 1953: a capable testator aged 16 or older signs at the end before two competent witnesses aged 14 or older and signs each preceding page. The service converts instructions about beneficiaries, executors, minor dependants, marriage regimes, business or offshore interests and the residue of the estate into clear clauses, then supervises valid execution and safe custody of the original. Drafting fees depend on complexity and must be distinguished from executor remuneration after death, which the Department of Justice and Constitutional Development describes as up to 3.5% of gross estate assets plus VAT where the executor is VAT-registered, with a separate percentage commonly applied to income collected between death and distribution.

Why Use an Attorney to Draft or Review a Will

A document can record a person’s general wishes yet still fail because it is ambiguous, omits the residue of the estate, appoints an unsuitable executor, creates conflicting gifts or is executed incorrectly. A valid will addresses formal compliance; a practical or “executable” will goes further and considers liquidity, debts, tax, administration costs and whether the named executor can in fact carry out each instruction.

Templates may suit a genuinely simple estate, but they do not test the effect of a marriage regime, a prior divorce, ongoing maintenance duties, a blended family, minor or disabled beneficiaries, business interests, trusts, foreign property or competing wills. Professional supervision reduces the risk of a beneficiary or executor acting as a witness, missing signatures, contradictory amendments, an unworkable bequest or an undiscoverable original. The promise is not that professional drafting guarantees validity or prevents disputes — it materially reduces avoidable drafting and execution risks that have, in practice, caused estates to fail or be litigated. Burger Huyser Attorneys’ Wills & Estates work is set up to handle exactly these layers, from intake through to supervised signing and safekeeping.

What a Will-Drafting Engagement Should Cover

1. Initial instruction and capacity check — confirm the client is at least 16, understands the nature and effect of the will, and is giving instructions freely and without undue influence.
2. Personal and family assessment — record marital status and regime, divorce history, children, dependants, maintenance obligations and any guardianship wishes.
3. Estate inventory and liquidity review — identify assets, debts, policies payable to the estate, business interests, trusts and foreign assets, and flag where tax or financial advice is also needed.
4. Beneficiary and distribution planning — define specific bequests, substitute beneficiaries, residue distribution and what happens if a beneficiary predeceases the testator.
5. Executor and administration choices — nominate the executor, co-executor or substitute, and discuss security, powers, professional assistance and remuneration before the will is signed.
6. Tailored drafting and explanation — prepare the clauses, explain their practical effect in plain language and revise the document until it accurately records the client’s instructions.
7. Execution supervision — arrange appropriate independent witnesses, oversee simultaneous signing, and address Commissioner of Oaths formalities if the testator uses a mark or directs another person to sign.
8. Original storage and review plan — arrange or discuss safe custody, identify who should know where the original is held and set triggers for future review.

What to Bring to the First Will-Drafting Consultation

Information or document	Why the attorney needs it
South African ID or other identity document	Confirms identity and supplies accurate personal details for the will.
Marriage certificate and antenuptial contract, if applicable	Establishes the marriage regime and which assets fall into which estate.
Divorce order and settlement agreement, if applicable	Identifies post-divorce obligations and whether an existing will needs urgent replacement.
Full names and identity details of spouse, children, dependants and intended beneficiaries	Prevents uncertainty about who receives a benefit and helps identify minors or vulnerable beneficiaries.
Proposed executor, substitute executor, trustee and guardian details	Allows the will to make workable appointments and clearly recorded alternatives.
Asset list	Immovable property, vehicles, bank and investment accounts, shares, policies payable to the estate, digital assets, business interests and offshore assets.
Liability list	Bonds, loans, tax exposure and other debts that affect estate liquidity and the executor’s ability to settle the estate.
Existing will and codicils	Enables a clean revocation and prevents accidental conflict with earlier documents.
Trust deeds, shareholders’ agreements or buy-and-sell arrangements	Tests whether the proposed will is consistent with existing structures and contracts.

Decisions and Clauses a Properly Drafted Will Should Address

• Revocation — revoke earlier wills and codicils clearly, while coordinating any separate foreign will so that one does not accidentally revoke the other.
• Executor — appoint a trusted executor, consider a professional co-executor for a complex estate, nominate a substitute, and deal with security and powers where appropriate.
• Executor remuneration — discuss and record any agreed fee rather than leaving the issue unclear, and distinguish the executor’s remuneration for estate administration from the once-off drafting fee.
• Specific gifts and residue — describe specific assets accurately, identify beneficiaries and substitutes, and state who receives everything not specifically bequeathed.
• Minor or vulnerable beneficiaries — consider a testamentary trust, suitable trustees and an appropriate vesting age instead of allowing cash to default to administration through the Guardian’s Fund.
• Guardianship wishes — record a parent’s nomination or wishes for a minor child while explaining that the appointment operates within the Children’s Act 38 of 2005 and the child’s best interests.
• Marriage and inheritance protection — consider the testator’s marriage regime and whether a beneficiary’s inheritance should be excluded from a current or future community estate or accrual claim.
• Maintenance and dependency — account for legal maintenance claims and the needs of a surviving spouse or dependant; freedom of testation is not absolute.
• Business and trust interests — align the will with shareholder, partnership, buy-and-sell and trust arrangements rather than treating those assets as ordinary personal property.
• Offshore assets — decide whether one worldwide will is practical or whether coordinated jurisdiction-specific wills and foreign legal advice are needed, especially for offshore immovable property.
• Funeral wishes and digital information — state preferences carefully without relying on the will as the only place to store time-sensitive instructions, passwords or access credentials.

Valid-Will Formalities Under South African Law

The Wills Act 7 of 1953 governs the formal requirements. The testator must be at least 16 and mentally capable of appreciating the nature and effect of making the will when it is executed. The will must be in writing; official guidance from the Department of Justice and Constitutional Development and Legal Aid South Africa allows it to be handwritten, typed or printed.

The testator signs at the end of the will in the simultaneous presence of at least two competent witnesses, and the witnesses sign in the presence of the testator and one another. Each page before the final page must also be signed by the testator. The Department of Justice guidance is that the witnesses need only attest and sign the final page; some commercial guides recommend that everyone sign every page as a precaution. The statutory minimum is the legal position, and the supervising attorney will confirm what is required at execution.

A witness must be at least 14 and competent to give evidence in court. Beneficiaries, nominated executors, trustees and their spouses should not act as witnesses or write or sign the will for the testator, because the Wills Act can disqualify benefits or appointments — independent witnesses are essential. If the testator signs by mark or directs another person to sign, a Commissioner of Oaths must attend, verify identity and intention, certify the document and comply with the additional page-signing requirements. An electronic signature or an unsigned digital copy should not be treated as the operative will; an original executed in accordance with the formalities remains the document to retain and lodge.

DIY Template vs Attorney-Drafted Will

Consideration	DIY or basic template	Attorney-drafted will
Cost at drafting stage	Some online providers advertise free drafting, usually bundled with another product.	Quoted according to the instructions and complexity; no defensible general fee range applies.
Best fit	Straightforward estate, uncomplicated beneficiaries and no special structures.	Minor or disabled beneficiaries, blended families, businesses, trusts, offshore assets, divorce, complex bequests or liquidity concerns.
Legal formalities	The testator must identify and apply every signing rule personally.	An attorney supervises execution and selects independent witnesses.
Tailoring	Standard clauses may not deal with unusual facts or conflicts.	Clauses are adapted to the estate, family structure and existing legal arrangements.
Estate planning	Often limited to recording who receives assets.	Identifies when tax, liquidity, trust, insurance or foreign-law advice is required.
Storage and updates	The testator must protect the original and manage versions alone.	Safekeeping and review arrangements can be agreed as part of the engagement.

Cost: Separate Will Drafting From Estate Administration

Cost category	What the available sources support	How to frame it
Will-drafting fee	No reliable market-wide attorney fee range appears in the public guidance; some financial-product providers advertise free drafting bundled with another product.	Burger Huyser Attorneys quotes after reviewing complexity; free offers in the market are tied to an executor, insurance or custody product and are not a like-for-like substitute for independent legal advice.
Safe custody	One provider advertises custody at R115 per year including VAT; other providers advertise free custody or couriering as part of their own offering.	Treat that figure as a competitor-specific benchmark, not a South African standard or a Burger Huyser price; safekeeping arrangements and any cost should be agreed in writing.
Executor remuneration	The Department of Justice describes the normally prescribed asset-based executor fee as 3.5% of gross estate value.	Add VAT where the executor is VAT-registered. A separate percentage is commonly applied to income collected from death until distribution. These are post-death administration costs, not drafting fees, and should be discussed and, where possible, recorded before the executor is appointed.
Estate-planning, tax or foreign advice	Complexity and the intended outcome affect cost.	Identify the need and scope before work starts; obtain a separate quote rather than promising an all-inclusive drafting price.

When to Review, Amend or Replace a Will

Review the will at least regularly — annual review is a sensible benchmark, and a review is essential whenever personal, family, asset or legal circumstances materially change. Trigger events include marriage, divorce, birth or adoption, the death of a beneficiary or executor, acquiring or selling property, starting or selling a business, a new dependant or special-needs obligation, a move abroad or the acquisition of foreign assets.

After divorce, prioritise review within three months: if the testator dies in that period, the Wills Act generally treats a pre-divorce bequest to the former spouse as revoked unless the will shows a contrary intention; once the period passes, the former spouse may again inherit under the unchanged wording. A codicil can amend a will, but it can be detached, overlooked or conflict with the original. For substantive changes, replacing the full will and clearly revoking prior versions is often cleaner. Date each executed version, destroy superseded originals only after the replacement has been validly signed, and ensure the executor or trusted person knows which original is current and where it is stored. Burger Huyser Attorneys’ Wills & Estates practice treats this review discipline as a standard part of the drafting engagement.

Safe Custody and What Happens After Death

Preserve an original signed will in a secure, dry and accessible place; an ordinary photocopy is not a substitute for the original. More than one separately executed original can be kept with different trusted people or institutions, but version control must be clear. The nominated executor or a trusted family member should know where the original is held, without placing passwords or other sensitive credentials in the will itself.

After death, the estate is reported to the Master of the High Court with the original will and required estate documents. The Master issues letters of executorship once the requirements are met, enabling the executor to collect assets, settle liabilities and distribute the balance under the will. Finalisation timelines vary with complexity, tax, disputes, foreign assets, property transfers, liquidity and the executor’s experience; a year is a common benchmark rather than a guarantee.

Will Drafting in Gauteng: Practical Logistics

A newly signed will does not need to be filed at a Magistrate’s Court or the Master’s Office to be valid — correct drafting and execution are what matter, and the original is produced when the deceased estate is later reported to the Master. Gauteng clients can give drafting instructions through Burger Huyser Attorneys’ Wills & Estates practice, with the Linden/Randburg head office at 49 First Avenue, Linden, Randburg serving as the default contact point for this non-location-specific topic. Clients who prefer another Gauteng branch should confirm consultation and original-safekeeping arrangements when booking, rather than assume that every branch follows the same storage process.

Speak to a Wills & Estates attorney. Burger Huyser Attorneys’ Wills & Estates team can prepare a new will or review an existing document, explain the clauses in plain language and help arrange compliant signing and safe custody. Contact the Linden/Randburg head office at 49 First Avenue, Linden, Randburg on 011 888 0246 or 061 516 6878, Monday to Friday from 7:30am to 4:30pm, to discuss the estate and request a scope-based quote. The firm holds a 4.8/5 average from 250+ Google reviews, with clients frequently highlighting clear communication and honesty about costs and prospects.

Frequently Asked Questions

How much does it cost to have a will drafted in South Africa?

There is no defensible market-wide attorney fee range for a will draft. Cost depends on whether the will is simple or has to address trusts, minor dependants, a blended family, business interests, foreign assets or coordinated estate planning. Burger Huyser Attorneys reviews the instructions and quotes before drafting. Free online offers advertised in the market are typically tied to an estate-plan, executor, insurance or custody product and should not be treated as a universal benchmark for independent legal advice.

Is the executor’s fee included in the will-drafting fee?

No. Drafting is the work done while the testator is alive, while executor remuneration pays for administering the estate after death. The Department of Justice and Constitutional Development describes the normally prescribed asset-based executor fee as 3.5% of gross estate value, plus VAT where the executor is VAT-registered. Discuss and, where possible, record the agreed fee in the will before naming the executor.

Can I draft my own will in South Africa?

Yes, a person may draft their own will, but the document must still satisfy the Wills Act 7 of 1953 and express workable instructions. Attorney review is especially valuable where there are minor or disabled beneficiaries, a blended family, a business, a trust, divorce obligations, offshore assets or concerns about estate liquidity.

What documents should I bring to a will-drafting appointment?

Bring identification, marriage and antenuptial-contract information, any divorce order, details of beneficiaries and proposed executors or guardians, an asset-and-liability list, relevant policies and business or trust documents, and every existing will or codicil. The attorney may request additional tax, property or foreign-asset documents after reviewing the estate.

Who can witness a will?

Use two independent people aged 14 or older who are competent to give evidence and can witness the signing together. A beneficiary, nominated executor or trustee, a person signing for the testator, and their spouses should not witness because doing so can jeopardise a benefit or appointment under the Wills Act.

Must the witnesses sign every page of the will?

The Department of Justice guidance states that the testator signs each page and the witnesses need only attest and sign the final page in the presence of the testator and one another. Some service providers use the stricter precaution of having everyone sign every page; follow the supervising attorney’s execution instructions without presenting that precaution as the statutory minimum.

When should I update my will after divorce?

Review it immediately and aim to replace it within three months. The Wills Act generally treats a pre-divorce bequest to a former spouse as revoked if the testator dies during that three-month period, unless the will indicates otherwise. After the period expires, the unchanged wording may again allow the former spouse to inherit.

Where should I keep the original will?

Keep it in secure, dry custody where the nominated executor or a trusted person can locate it after death. A normal photocopy is not equivalent to the original, so agree who holds the operative original, keep version control clear and confirm any professional safekeeping terms in writing.