20 common misconceptions South Africans have about wills - IOL

September is Wills Month, and it tends to produce two kinds of stories: how simple it is to sign a will, and how much people misunderstand about what a will actually controls.

September is Wills Month, and it tends to produce two kinds of stories: how simple it is to sign a will, and how much people misunderstand about what a will actually controls.

The gap between the two causes most of the disputes, delays and shortfalls that land on an executor’s desk. Here are twenty of the most persistent misconceptions, and the legal position behind each.

If you are married in community of property, this is rarely true, and getting it wrong is one of the most expensive drafting errors in South African wills.

On death, the joint estate splits automatically: 50% already belongs to the surviving spouse in their own right, by virtue of the marriage itself, not the will. Only the deceased’s remaining 50% is available for the will to distribute.

A will that bequeaths “50% of my estate” to a surviving spouse, without stating whether that means the joint estate or the deceased’s half, can leave that spouse with their own 50% plus half of the residual 50% — a 75% claim on the total estate, not 50%. Every other beneficiary receives correspondingly less than the testator intended.

Wills for spouses married in community of property must state explicitly which estate a percentage bequest refers to.

Under section 2B of the Wills Act, a will made before divorce is treated as if the former spouse died before the testator - but only if the testator dies within three months of the divorce. After three months, an unamended will can still benefit the ex-spouse.

They do not. Creditors are settled before any heir inherits, and assets may need to be sold to raise the cash.

It does not. Death benefits from a retirement fund fall under section 37C of the Pension Funds Act. Fund trustees, not the will, identify dependants and decide the distribution.

Not if you have nominated a beneficiary on the policy. A valid nomination generally pays out directly to that person, bypassing the deceased estate and the will entirely.

An estate can include a home, a vehicle, bank accounts and personal belongings.

For a parent, guardianship arrangements alone justify a will regardless of asset value.

Minors cannot inherit directly and manage an inheritance themselves. Without a testamentary trust or guardian’s fund arrangement, money due to a child is held by the Guardian’s Fund until majority, often with limited flexibility.

An informal understanding is not enforceable, and family members frequently recall the same conversation differently. Only a validly executed will binds an executor.

Marriage, divorce, births, deaths of beneficiaries and asset changes can all make an old will legally valid but practically wrong. Wills should be reviewed after any major life event.

Under section 2(1) of the Wills Act, a will must be signed by the testator at the end, and on every other page, in the presence of two competent witnesses aged fourteen or older, present at the same time, who then sign in the presence of the testator and each other. An unwitnessed note generally fails this test and can only be rescued by a costly court application.

Cohabitation, without marriage or a registered civil partnership, does not create automatic inheritance rights under the Intestate Succession Act. A life partner excluded from a will can be left with nothing.

An executor has no legal authority to act until the Master of the High Court issues Letters of Executorship. Bank accounts are typically frozen until then.

maintenance against the estate under the Maintenance of Surviving Spouses Act, regardless of what the will says.

Without careful planning, often through a trust, children from a first marriage can be unintentionally excluded if a surviving second spouse later inherits everything and rewrites their own will.

coordinated wills Two similar wills signed separately are not the same as wills drafted to interact correctly, particularly around massed estates or protecting a first-dying spouses wishes after the survivor remarries.

The Administration of Estates Act prescribes a maximum tariff of 3.5% of the gross estate value plus 6% on income earned after death, plus VAT. This is a ceiling, not a fixed charge, and it is negotiable — but only before death, at the drafting stage.

Institutions offering free wills in September typically require appointment as executor in return. The estate still pays executor’s fees, often at or near the statutory maximum, and the family has less say over who administers the estate and how.

A foreign will can be valid in South Africa if it meets recognised formalities, but administering foreign-executed documents alongside local assets often adds delay, translation and authentication requirements that a locally drafted will avoids.

A will does not tell anyone where it is kept, who the executor is, or what documents exist. Families should know these details in advance, without needing every clause disclosed early.

Debt, property, children and dependants arrive well before most people think of themselves as needing a will. Most people do not decide against having a will; they simply keep postponing it.

A will is the one document that speaks for you when you no longer can. During Wills Month, it is worth remembering that a free will is not the same as a properly considered one, and that appointing the drafter as executor is rarely free in practice.

An independent, appropriately qualified specialist who drafts to your instructions, without self-appointing as executor, gives your estate the best chance of being administered the way you intended.

This article is general information only and does not constitute legal advice. Anyone drafting or reviewing a will should consult a qualified attorney about their specific circumstances.

Sanjith Hannuman is a director at AVIB and an employee benefits consultant who holds an MBA from UKZN, is an FSA of the Financial Planning Institute of South Africa, a Human Values Practitioner, and a Behavioural Life Coach who believes in the betterment of life for all.