There is a focus on wills every year in the third quarter with some professionals offering free wills. The good part of this is that it is a focus on wills. However, this has an unfortunate side effect – it commoditises the last will and testament.
A last will and testament is not something you buy at a supermarket shelf. Making a will should be the result of a process of estate planning, which in turn is part of the bigger process of financial planning. I hear you say estate planning is for the ultra-wealthy. Nothing could be further from the truth. To start with drafting a will is to start at the wrong end, no matter if your estate is worth R100 000 or R100-million.
Drafting and executing a legally binding will should be easy, yet the courts are approached regularly to condone documents which appear to be intended as wills, but which fall short of the formal requirements for the execution (signing) of a legally valid will, as set out in section 2 of the Wills Act, 7 of 1953.
In a recent case, a retired constitutional court judge was apparently unaware that a will cannot be signed electronically (Mokgoro v Master of the High Court, Kimberley [2025] ZANCHC 60). There are also cases where financial advisors and accountants neglect to ensure that the will is signed in accordance with the requirements set out in the Act.
In one of these matters, which went all the way to the Supreme Court of Appeal, (Raubenheimer v Raubenheimer [2012] ZASCA 97), Judge of Appeal Leach remarked, “It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills – one of the most important documents they are ever likely to sign.”
Free advice is worth every cent you pay for it.
Unfortunately, it seems many who could be regarded as trained still do not pay sufficient attention to the requirements for executing a valid will. In Raubenheimer, a financial advisor signed as witness with the testator, but had one of his staff sign as second witness the next day in another city, while in Delport v Le Roux and Others [2022] ZAKZDHC 51 the testator’s accountant signed with him as witness, and he had one of his staff sign the next day as second witness.
In Raubenheimer the court condoned the document as a valid will under section 2(3) of the Act, but in Delport the court, inexplicably, held that it could not find that the testator intended the document to be his last will and testament.
The important point from these examples is that you may eventually be successful with a court application to have a document tolerated as a valid will, but it is costly and time-consuming.
Drafting a will should not be attempted before a thorough process of analysing the testator’s financial assets and liabilities as well as what he expects to receive or accumulate in the short to medium term, how many of the assets are liquid assets, which marital regime or relationship status is applicable, what the family setup happens to be, and what the plans, dreams and aspirations of the testator are. It also requires an understanding of what assets the testator thinks are included in the estate, but are not, for example, retirement fund benefits.
The final trap to be avoided by anyone who wants to make a will is to resist the temptation to go for the free offer or the lowest cost option as a final solution instead of an emergency interim measure. In the financial planning practice I am involved in, we have a saying, “Free advice is worth every cent you pay for it.”
