Why People Put Off Drafting a Will in South Africa

 

Written by Roy Bregman, an admitted attorney with over 52 years' experience in wills and estate planning. Read Roy's full biography.

KEY TAKEAWAYS ·        A will is the only way to choose who inherits your assets, who raises your minor children, and who administers your estate. Without one, the Intestate Succession Act 81 of 1987 decides for you. ·        The common reasons for delay (feeling too young, avoiding the topic, assuming the family will sort it out, fear of cost or conflict, indecision) all get harder to resolve over time, not easier. ·        A properly drafted will reduces family disputes, shortens estate wind-up, and limits unnecessary tax leakage. It is one of the highest-value, lowest-cost legal documents you will ever sign. ·        At Bregman Moodley Attorneys you draft your will directly with a partner. Most straightforward wills are completed in one or two short meetings.

 

The gap between knowing and doing

Most adults know they need a will. Few have one in place. A will is the legal document where you decide who inherits your assets, who raises your minor children, and who winds up your estate. Without one, none of those decisions are yours.

The gap between knowing and doing is the single biggest source of avoidable family stress an estates practitioner sees in Gauteng. This article explains why people delay, what actually happens when they do, and how to take the matter off your worry list in a single meeting.

Why do people put off drafting a will?

Most reasons fall into one of five buckets. None of them hold up well under scrutiny.

"I am too young or too healthy"

Wills are not only for the elderly or the unwell. They are for any adult with assets, dependants, or both. Young families need wills more, not less, because there are minor children to provide for and guardians to nominate.

"I would rather not think about it"

Death is uncomfortable. Drafting a will, paradoxically, makes the topic easier to live with. Once your decisions are recorded, you stop carrying them around.

"My spouse and children will just inherit"

This is the most damaging assumption in South African estate practice. If you die without a will, the Intestate Succession Act 81 of 1987 decides who inherits and in what shares. The Act does not know about your blended family, your second marriage, the partner you never formally married, or the friend who raised you.

"It will be expensive or complicated"

A standard will from a reputable attorney is one of the lowest-cost professional documents you will ever sign. Complexity comes from the assets, not from the drafting.

"I cannot decide who should get what"

This is the most honest reason and the easiest one to resolve. A partner who has done this work for decades will usually walk you through the decision in one sitting.

What happens if you die without a will?

Your estate becomes intestate. The Master of the High Court appoints an executor (often someone you would not have chosen), and your assets are distributed under a statutory formula in the Intestate Succession Act.

The practical consequences are predictable. The wind-up takes longer because there is no nominated executor and no clear list of assets. Minor children's inheritances may be paid into the Guardian's Fund until they turn 18, with limited access in the meantime. Family members you wanted to provide for (a long-term partner you did not marry, a stepchild you did not formally adopt, a charity, a loyal employee) may receive nothing. Disputes among heirs are common and expensive. Litigation at this stage usually costs more than drafting a will twenty times over.

What does a properly drafted will actually do?

A well-drafted will does five things, in roughly this order of importance.

It directs your assets to the right people

You decide who inherits, in what proportions, and on what conditions.

It appoints an executor you trust

The executor controls the estate from the moment you die until it is wound up. A capable executor saves the family months and, often, real money.

It provides for minor children

You can nominate a guardian, set the age at which children receive their inheritance, and create a testamentary trust (a trust that comes into existence on your death) to hold and manage the inheritance until then.

It reduces disputes

Clear instructions, signed and witnessed correctly under the Wills Act 7 of 1953, are difficult to challenge. Most family fights happen where the wishes are unclear or unrecorded.

It supports sensible estate planning

A will is part of, not a substitute for, broader estate planning. Used well it can manage estate duty exposure, protect a vulnerable beneficiary, and align with any family trust or business succession plan you already have.

Why does delay make things worse over time?

Two things grow with time: the size of your estate and the complexity of your life. New property, new investments, a second marriage, children from different relationships, a growing business. Each one adds a layer that an out-of-date or non-existent will cannot handle. The point at which a will is hardest to draft is also the point at which it is most needed.

How long does it take to put a will in place?

For most clients, a straightforward will is done in two short meetings. The first covers your circumstances and instructions. The second is signing, witnessing, and taking custody of the original. Complex estates take longer, but rarely more than a few weeks.

Frequently asked questions

Is a handwritten or self-drafted will valid in South Africa?

It can be, but only if it complies strictly with the formalities in the Wills Act 7 of 1953. Most home-drafted wills fail on signing or witnessing and are partly or wholly invalid. The Master of the High Court rejects defective wills regularly. The cost of a properly drafted will is small compared with the cost of fixing a defective one after death.

What happens to my will when I get married, divorced, or have a child?

A subsequent marriage does not automatically invalidate your will, but it should be reviewed. Divorce has a specific effect: bequests to a former spouse generally lapse if you die within three months of the divorce. Any major life event (marriage, divorce, birth, death of a beneficiary, large inheritance, emigration) is a trigger to update.

Where should I keep my original will?

The original signed will is the only document the Master of the High Court will accept. Keep it somewhere fireproof, secure, and known to your executor. Many Bregman Moodley clients leave the original with us in safe custody at no cost and keep a certified copy at home.

Can I disinherit a spouse or child?

You can largely choose who inherits your estate. A surviving spouse may have a claim for reasonable maintenance under the Maintenance of Surviving Spouses Act 27 of 1990, and dependent children may have a maintenance claim against the estate. A clear will, drafted with these claims in mind, reduces the risk of a successful challenge.

Do I need a will if I already have a family trust?

Yes. A trust holds only the assets transferred into it. Anything in your personal name at the date of death (your home, vehicles, bank accounts, investments, personal effects) passes under your will. Trust and will should be drafted together so they pull in the same direction.

Conclusion

Drafting a will is one of the simplest, cheapest, and most generous acts of administration you can do for the people you love. The reasons people delay are real but solvable. The reasons not to delay are concrete and grow with time.

If you have been meaning to put a will in place, the next step is short: a single conversation with a partner who can give you a clear set of options and draft the document around your life, not a template.