What makes a Will legally valid? (And why it matters)

A Will is not just a piece of paper. It’s a legal document that shapes how your estate is handled, how your family is supported after your death, and how your final wishes are carried out, according to Karen McMurray, Wills product manager at FNB.

But unless, she says, it meets strict legal standards, it can be challenged, or worse, deemed invalid.

 “Too often we see Wills that express a person’s intentions clearly, but still fall short legally. The result is unnecessary delays, disputes, and heartache for families who are already having to navigate the loss of a loved one. That’s why trusted, integrated advice is so important when drafting this vital document," says McMurray.

 McMurray lists five crucial elements to consider, ensuring that your Will meets the stipulations of the Wills Act 7 of 1953:

It must be made voluntarily

Your Will must be made freely by you and without any coercion or undue influence. “Any suggestion that the testator (the person making the Will) was pressured into doing so, or influenced in what they wrote in it, can invalidate the entire document,” McMurray says.

The testator must be of sound mind and at least 16 years old

A valid Will can only be created by someone who understands what they are doing and the implications of their instructions. Mental capacity at the time of signing is critical. In South Africa, you also have to be older than 16 to create a Will.

The document must be printed and physically signed

Digital Wills are not legally valid in South Africa. The Will must exist as a hard copy and be physically signed by the testator and both witnesses.

Witnessing the Will

According to McMurray, this step often causes the most legal trouble. The Will must be signed by the testator in the presence of two witnesses, who are older than 14 years and who are competent to give evidence in a court of law, and who must also sign the Will. It is imperative that all the signing is done together and at the same time. If there is any doubt that this was the case, the Will could be rejected in court. “Even with good intentions, skipping this requirement can result in the Will not being accepted by the master,” says McMurray.

 Witnesses must also be impartial. According to section 4A of the Act, any person (or their spouse) who stands to benefit from the Will can’t legally act as a witness. If they do, they risk losing their inheritance or part thereof.

The intent must be clear

The Will should unambiguously reflect the testator’s wishes. “Clearly naming beneficiaries and alternate heirs is essential. Avoid complex instructions or trying to plan for every future scenario - rather, review and update your Will regularly to adjust for changes in your circumstances or wishes over time," says McMurray.

She also cautions against including instructions in your Will to sell specific assets, as this can delay estate administration or result in assets being sold at less than their value.

“Drawing up a Will isn’t just about expressing your wishes; it’s about making sure they’ll be carried out. It’s one of the most important documents you’ll ever sign, so getting the legal details right is essential. If you aren’t sure about any legal aspect of your Will, it’s always best to consult a fiduciary expert," says McMurray.

PERSONAL FINANCE