C&A Friedlander Attorneys

A will is a binding legal document that an individual uses to direct how their estate is to be distributed upon death or set forth their wishes when one is unable to express informed consent. There are multiple types of will’s that one has the option to choose from, such as simple wills, joint wills, living wills, etc. However, the focus here will be on the commonly created wills.

A simple will is one that directs the distribution of one’s estate to someone who will act as the executor of their estate and/or alternatively naming a guardian for their children where there are minors involved. It is created in writing by a person who is over the age of 16 years. The Wills Act 7 of 1953 outlines all the requirements that a valid will must comply with, such as, inclusion of the deceased beneficiary’s name, address and marital status; and guidelines concerning which property goes to which beneficiary.

A joint will is a single will which is mutually executed by at least two or more people. It consolidates the testators’ property under a joint will, the surviving party(s) acquires the whole estate when the other party dies. A joint will gets slightly complicated in that in addition to the requirements of a valid will, the will cannot be revoked by one party. Any changes must be done by all the testators and should the first testator die then it is not permissible by law for the surviving party(s) alter or revoke the will. Even if the surviving spouse remarries after the death of the other spouse, the terms of the joint will remain unchanged and the surviving spouse must comply with them, which is the greatest disadvantage. A joint will also gives the testators have the option of massing their estate.

Estate massing occurs when the testators combine their estates into one consolidated unit and on the death of first testator, the consolidated estate is bequeath to the beneficiary. Estate massing is a common method when considering to reducing estate duty. A limited right is registered in favour of the surviving testator to enjoy parts or interest of the estate during their lifetime, for example, a house is bequeathed to the beneficiaries and a usufruct that allows the surviving testator to live in the until death is registered against the property.

Did you know that as the testator/s, you can create a clause in which you bequeath part or whole of your estate into a testamentary trust?

The trust clause stipulates the terms and conditions that will apply to the trust. It holds assets for the benefit of certain persons or entities, usually for a predetermined period or at a determined event, such a minor turning eighteen or the death of an income beneficial.


by Jennefer Machabi


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).