Having a valid will is one of the most important steps you can take to protect your loved ones and ensure your wishes are carried out. Yet, many South Africans still delay this crucial process or rely on misconceptions that can cause serious complications later. Recent legal developments and practical estate-planning trends also highlight the importance of getting it right.
This article explores common myths about wills, emerging legal precedents on electronic wills, the risks of dying without a will, the role of testamentary trusts, and what you should prepare before having your will drafted.
Five Common Myths About Wills:
- “I’m too young and don’t have much, so I don’t need a will.”
Accidents and illness can happen at any age. A will ensures your wishes are respected — from who inherits personal belongings to who takes guardianship of children. Without one, the law decides for you. - “If I have a will, my estate will be wrapped up quickly.”
Even with a professionally drafted will, estate administration is still a legal process that can take months or even years depending on complexity, debts, taxes, and compliance with the Master’s Office. - “My spouse will automatically inherit everything.”
Without a valid will, the Intestate Succession Act determines inheritance. Assets may be shared between a spouse, children, and sometimes parents — which may not align with your wishes and can cause conflict in blended families. - “The executor can be anyone.”
While you can nominate anyone, the Master of the High Court must approve them. An inexperienced executor can delay the process. Appointing a professional executor ensures expertise and efficiency. - “Writing my own will is enough.”
Homemade wills often fail due to technical errors, such as improper witnessing. To avoid costly mistakes, it is best to have your will correctly drafted and executed by professionals.
Electronic Wills: A Landmark Legal Development:
In August 2025, the Northern Cape High Court made history in Mokgoro and Others v Master of the High Court, Kimberley by accepting an electronically signed will as valid under section 2(3) of the Wills Act.
The court emphasised intent over strict compliance with formalities. While this ruling shows that electronic wills can be accepted in exceptional cases, it does not replace the requirement for formal compliance, which remains the safest approach.
Other cases, including Perumal v Janse van Rensburg (2025), have also shown courts’ willingness to accept digital wills where clear intent is proven. However, litigation is often required, making the process costly and uncertain.
Key takeaway: Although electronic wills are emerging, a properly drafted and signed paper will is still the most reliable and legally sound option
The Hidden Costs of Dying Without a Will:
When someone dies without a valid will, their estate is distributed according to the Intestate Succession Act, often with unintended consequences.
Risks include:
- Delays that may stretch for years.
- Added costs, such as bonds of security.
- Minors’ inheritances placed in the Guardian’s Fund, restricting access.
- Family disputes escalating into legal battles.
- Personal or charitable wishes left unfulfilled.
A professionally drafted will helps avoid these pitfalls, reduces costs, and ensures loved ones are properly provided for.
The Rise of Testamentary Trusts:
Testamentary trusts — created in terms of a will and activated on the testator’s death — are increasingly being used in estate planning. They can:
- Protect minor children.
- Provide ongoing financial management.
- Safeguard assets from risk.
However, they come with added costs and responsibilities, including trustee appointments, annual compliance, and professional fees. Without proper funding, the trust’s purpose can be undermined.
When structured correctly, testamentary trusts remain a valuable estate-planning tool — but they require careful planning.
Preparing Before Drafting Your Will:
To make the process smooth and effective, gather the following information beforehand:
- Personal details of yourself, spouse, and dependents.
- Executor choice (professional, family member, or both).
- List of beneficiaries with clear details.
- Guardianship plans for minor children.
- Trust considerations for minors or vulnerable beneficiaries.
- Assets and liabilities (properties, investments, debts, digital assets).
- Special circumstances, such as business succession or dependents with special needs.
- Funeral and medical wishes, including burial/cremation preferences or a living will.
- Witness arrangements to ensure the will is validly executed.
- Safe storage for the original will.
- Supporting documents, such as title deeds, policies, or marriage certificates.
A living will can also be added, stating your medical wishes should you become unable to communicate. This provides clarity for doctors and peace of mind for loved ones.
Final Thoughts:
A will is far more than a legal formality — it’s a safeguard for your loved ones and a way to ensure your wishes are respected. Myths, delays, and poor planning can cause unnecessary costs and hardship. By preparing properly and seeking professional guidance, you can create a will that provides clarity, certainty, and long-term protection.
Source: Wealth Associates Fiduciary Team
