Your Will could still fail you: These are the mistakes that can derail your estate plans

Having a Will is essential for ensuring one's affairs are in order, but only if it is valid, up-to-date, and discoverable when needed. During National Wills Week, South Africans must be cautious of common mistakes that can invalidate a Will or cause complications during estate distribution. According to Sanlam's 2026 Wills Survey, nearly two-thirds of respondents do not have a Will, and only 28% have executed one that is legally signed, witnessed, and stored securely.

The survey, based on a convenience sample of 1,200 people, highlights several pitfalls that South Africans should avoid.

One of the most critical issues is non-compliance with the signing and witnessing requirements of the Wills Act. If a Will is not correctly signed and witnessed, it may still be accepted in extreme cases, but only after a High Court application, which incurs additional costs and offers no guarantee of success. Another problematic area is asking someone who will benefit from the estate to serve as a witness.

Section 4A of the Wills Act prohibits a witness, as well as the witness's spouse, from receiving any benefit under the Will. Despite this, Old Mutual has reported that 18% of the Wills returned for secure storage contained signing errors.

The consequences of an invalid Will can be significant. Without a valid Will, South African law applies the Intestate Succession Act, which dictates how the estate is distributed. This means that individuals cannot use a Will to designate their preferred executor, make specific bequests, or establish a testamentary trust for a minor child.

As of 2022, about 85% of South Africans died without a valid Will. Estate planning becomes particularly crucial when minor children are involved, as children under 18 cannot legally manage an inheritance. If a parent dies without a Will or one that adequately provides for minor children, funds may be paid into the Guardian's Fund, currently holding R18.8 billion for beneficiaries as of March 31, 2025.

Parents can also designate a guardian for their children, but this nomination does not override the rights of a surviving parent who already has guardianship. If no surviving guardian exists, the High Court assumes guardianship of minors. It is essential to recognize that writing a Will is not a one-time event; circumstances change, and estate plans must be regularly reviewed.

These changes include marriage or divorce, the birth of a child, the death of a spouse, executor, or nominated guardian, property acquisitions or sales, and significant shifts in assets or debts. Additionally, starting or selling a business, emigrating, or acquiring overseas assets may necessitate updates to the Will. Divorce has an extra layer of complexity; if someone dies within three months of being divorced, their former spouse is generally considered to have predeceased them under the Wills Act, potentially altering the distribution of the estate.