How to Bequeath Assets In A Will?

Bequeathing assets in a will in South Africa requires a will that complies with the Wills Act 7 of 1953 — signed by the testator in the presence of two competent witnesses who also sign, in the same sitting — and gives effect to the testator’s testamentary wishes through specific bequests, a residuary clause, or a combination of the two. Not everything a person owns can be bequeathed by will: pension fund benefits are governed by section 37C of the Pension Funds Act 24 of 1956 and do not form part of the deceased estate, trust assets in a properly constituted inter vivos trust remain outside the estate, and testamentary freedom is limited by the spousal maintenance claim under the Maintenance of Surviving Spouses Act 27 of 1990 and by claims for minor children’s maintenance. After death, the will is lodged with the Master of the High Court in the region where the deceased was ordinarily resident, and an executor is appointed to administer the estate, settle estate duty under the Estate Duty Act 45 of 1955, and transfer the assets to the beneficiaries.

The Legal Framework: What the Wills Act Requires

The Wills Act 7 of 1953 governs the formal validity of wills in South Africa and is the starting point for any bequest. The starting principle is testamentary freedom — a competent testator can leave their estate to whomever they choose, subject only to the statutory limits set out below. To exercise that freedom, the testator must be at least 16 years old and mentally capable of appreciating the nature and effect of the document at the time of signing.

Supervision of the entire process sits with the Master of the High Court, an office of the Department of Justice and Constitutional Development. The Master validates the will, authorises the appointment of an executor, and approves the Liquidation and Distribution Account before any asset is transferred to a beneficiary. Because every will must ultimately be lodged with the Master, drafting against the Act’s formalities is what makes the document effective at all.

Formalities for a Valid Will

A will that fails the Act’s formalities is invalid, and the estate is then administered as intestate under the Intestate Succession Act 81 of 1987 — usually a result testators did not intend. The requirements are:

• The will must be in writing — either handwritten in the testator’s own hand (an olographic will) or typed or drafted by someone else.
• The testator must sign at the end of the will in the presence of two competent witnesses, both of whom must be present at the same time.
• Each witness must sign the will in the presence of the testator.
• No beneficiary under the will should act as a witness; a beneficiary who does so generally forfeits the benefit.

These formalities look straightforward, but a surprising number of home-drafted wills are struck down for one of them — typically because the testator signed outside the presence of both witnesses, or because a beneficiary signed as a witness.

What You Can Bequeath (and What You Cannot)

Most assets can be bequeathed by will, but a few important categories sit outside the deceased estate altogether. The table below summarises the main types and how each one is treated.

Asset	Can it be bequeathed by will?	How it is handled
Moveable assets (cars, furniture, jewellery, bank accounts, shares, intellectual property, livestock)	Yes	Distributed to the named beneficiary by the executor.
Immovable property (fixed property)	Yes	Bequeathed by specific reference; transferred via the Deeds Office once the Liquidation and Distribution Account is approved.
Business interests (sole proprietorships, partnerships, shareholding)	Yes	Can be bequeathed outright or via a trust hold, depending on the structure.
Pension and provident fund benefits	No	Governed by section 37C of the Pension Funds Act 24 of 1956; the fund’s board distributes according to a statutory dependency hierarchy, not the will.
Trust assets held by a properly constituted inter vivos trust	No	Remain outside the estate unless the trust was improperly constituted or the testator retained the controlling interest.
Life insurance with a nominated beneficiary	No	Pays out directly to the nominee outside the estate. Without a nomination, the proceeds form part of the estate.
Foreign property	Yes	Can be bequeathed in a South African will, but execution in the foreign jurisdiction may require ancillary probate.

The Pension Funds Act point is the one most often missed. Many testators name a spouse or child for their pension in their will without realising the will does not control the payout — the fund’s board does. If a pension nomination is the desired outcome, the correct instrument is the fund’s own beneficiary nomination form, not the will.

Methods of Bequeathing

South African wills typically combine several different bequest methods to dispose of a full estate. The methods most often used are:

Method	What it does	Typical use
Specific bequest	Leaves a particular identified asset to a particular beneficiary.	A named house, vehicle, or share portfolio.
Pecuniary (general) bequest	Leaves a stated sum of money to a beneficiary.	“R100,000 to my niece.”
Residuary clause	Disposes of whatever remains after debts and specific bequests are settled.	The main clause for many testators.
Substitution / fideicommissum	Gives the asset to A, and on A’s death to A’s children.	Used to keep assets within a family line.
Conditional bequest	The bequest takes effect only on a stipulated condition.	“If my daughter completes her degree by age 25.”
Bequest to a trust	Directs the asset to be held by a trust (existing or to be created in the will).	Common for minor beneficiaries or to preserve assets.

Most practical wills combine a list of specific bequests for items the testator cares about with a single residuary clause that catches everything else. Where minors are involved, a bequest to a trust — set up either during the testator’s lifetime or by the will itself — is usually the safest way to ensure the inheritance is managed responsibly until the child is older.

Step-by-Step: Drafting a Will That Bequeaths Assets

1. List the assets and the beneficiaries you want each to receive.
2. Decide on the structure — specific bequests first, then a residuary clause disposing of the remainder.
3. Choose the executor. The Master confirms the appointment, but naming a willing, capable executor in the will speeds the process up considerably.
4. Draft the will in plain language, including the standard clauses: identification of the testator, revocation of prior wills, appointment of executor, bequests, residuary clause, and signing clause.
5. Sign the will in the presence of two competent witnesses, who then sign in your presence — all in the same sitting.
6. Store the original will safely — with the attorney’s office, in the Master’s Office safe custody facility, in a bank safe, or in a fireproof safe — and tell the executor where it is kept.
7. Review and update the will after major life events: marriage, divorce, the birth of a child, the death of a beneficiary, the acquisition of significant assets, or a change of marital regime.

Limitations on Testamentary Freedom

Testamentary freedom is broad, but it is not absolute. The four limits that come up most often are:

• Maintenance claim by a surviving spouse — under the Maintenance of Surviving Spouses Act 27 of 1990, a surviving spouse can claim maintenance from the estate if the will (or intestate succession) does not make reasonable provision for them.
• Children’s claims — a child, including a major child, can claim maintenance from the estate if the will fails to make reasonable provision; these claims are heard in the Maintenance Court.
• Insolvent estates — if the estate is insolvent, bequests are not honoured; creditors are paid first in the order set out in the Insolvency Act 24 of 1936.
• Predeceasing beneficiary and public policy — if a beneficiary dies before the testator, the bequest generally lapses unless the will includes a substitute clause, and a bequest that requires the beneficiary to do something unlawful or against public policy is unenforceable.

Costs and What Happens After Death

Bequeathing the assets is only the starting point; several costs fall due before any beneficiary receives a cent. The main ones are:

Cost	Governing instrument	How it is calculated
Estate duty	Estate Duty Act 45 of 1955	Levied on the dutiable value of the estate above the primary abatement — confirm the current SARS-published abatement at the time of writing, as it changes with each Budget.
Capital gains tax (CGT)	Income Tax Act 58 of 1962 (eighth schedule)	Death is a taxable event; the estate steps into the testator’s shoes and CGT is worked out on the difference between the asset’s base cost and its market value at date of death.
Executor’s fees	Administration of Estates Act 66 of 1965 (Executors’ Tariff)	Fixed as a percentage of the gross value of the estate.
Transfer duty on fixed property	Transfer Duty Act 40 of 1949	Payable when immovable property is transferred out of the estate to a beneficiary who is not the surviving spouse.
Master’s fees	Administration of Estates Act 66 of 1965	A percentage-based fee on the estate value, paid to the Master’s Office.

Once the assets are listed and the debts paid, the executor reports the estate to the Master of the High Court, files the death certificate and the will, and the Master issues Letters of Executry. The Master’s Office is regional — the relevant Master is the one in the region where the deceased was ordinarily resident at the date of death. In Gauteng, the Pretoria seat serves Pretoria, Centurion, and the northern Gauteng region, while the Johannesburg seat serves Johannesburg, the East Rand, the West Rand, and Sedibeng. Burger Huyser Attorneys’ Wills & Estates team — headed in its family-law and deceased-estates work by Director Anna-Mi Nel, with an in-house Deceased Estate Administrator, Lance Pearson, supporting the executorship function — handles this reporting and the Liquidation and Distribution Account process for clients across the firm’s Gauteng branches.

Common Pitfalls and How to Avoid Them

Most will disputes in South Africa are not about what the testator meant — they are about a formality that was missed. The pitfalls to watch for are:

• Signing the will outside the presence of both witnesses, or having witnesses sign outside the presence of the testator. Either mistake invalidates the will.
• Naming a beneficiary who witnesses the will — the gift typically lapses.
• Forgetting to revoke a previous will. A new will that does not expressly revoke prior wills can produce contradictory dispositions.
• Bequeathing a house to one child and “splitting” the residue equally. The arithmetic works, but family conflict is common — either bequeath the house to all of them as co-owners, or sell it and split the proceeds.
• Assuming a will covers pension fund benefits. It does not — section 37C of the Pension Funds Act prevails over any will clause.
• Failing to update the will after divorce. Under the Wills Act, divorce revokes bequests to the former spouse, but other dispositions (to new partners or children of a second marriage) may not reflect actual intent.
• Leaving a bequest to a minor without appointing a guardian or a trust to hold the inheritance. Minors cannot receive inheritances directly — a testamentary trust or guardian of property is required.

Working through this list with a qualified attorney before signing is the simplest way to avoid most disputes after death. Given that estate planning depends on marital regime, family structure, asset composition, and any trust or pension fund terms, a quick review of an existing will after a major life event is worth more than most people expect.

Frequently Asked Questions

Does a will let me leave everything to one person?

Yes, in principle — testamentary freedom is the default, so a competent testator can leave their entire estate to a single beneficiary. That freedom is, however, limited by the surviving spouse’s right to claim maintenance under the Maintenance of Surviving Spouses Act 27 of 1990 and by any child’s right to claim maintenance from the estate, both of which can override the will.

Does a will control my pension fund payout?

No. Pension and provident fund benefits do not form part of the deceased estate and are not governed by the will. The fund’s board distributes them under section 37C of the Pension Funds Act 24 of 1956, according to a statutory dependency hierarchy. To influence who receives your pension benefits, complete the fund’s beneficiary nomination form — naming the person in your will has no effect.

Can I bequeath a house that is still bonded?

Yes — the bond does not prevent the bequest. The beneficiary inherits the property subject to the bond, and the executor is responsible for settling the bond from the estate’s available funds or arranging for the beneficiary to take over the bond with the bank’s consent.

What happens if I die without a will?

Your estate is administered as intestate under the Intestate Succession Act 81 of 1987. The estate is distributed along a fixed hierarchy of spouse, descendants, parents, and siblings — and, depending on the family structure, a cohabiting partner or a parent may receive nothing, which is one of the strongest practical reasons to draft a will.

Can I write my own will in handwriting?

Yes — an olographic will, written entirely in the testator’s own handwriting, is valid under the Wills Act 7 of 1953, provided it is signed and dated and complies with the Act’s remaining formalities. Many people use a printed template drafted by an attorney instead, to avoid the risk of an olographic will being challenged on a formality.

How do I update my will?

Either draft a new will that expressly revokes all prior wills, or execute a codicil (a formal amendment) to the existing will. Marriage generally revokes a prior will under the Wills Act, so a new will is needed after marriage; divorce revokes bequests to the former spouse but does not on its own revoke the rest of the will.