The 6 Most Dangerous Mistakes in South African Wills — And How to Avoid Every One of Them

By Roy Bregman, admitted attorney since 1974 · Bregman Moodley Attorneys Inc

In 52 years of estate law practice, I have reviewed many thousands of wills — those drafted by attorneys, and those drafted without professional help. The same mistakes appear again and again, and the consequences range from inconvenient to catastrophic. Here are the six I consider most dangerous.

Mistake 1: Failure to Meet the Formal Requirements of the Wills Act

A will that does not comply with the formalities of the Wills Act 7 of 1953 is invalid — and the Master of the High Court will not accept it. The requirements are specific and unforgiving:

• The testator must be 16 years or older and mentally competent
• The will must be in writing (typed or handwritten)
• The testator must sign every page, including the last
• Signing must occur in the presence of two competent witnesses, simultaneously
• Both witnesses must sign every page in the presence of each other and the testator
• No witness — or their spouse — may be a beneficiary under the will

A will signed in two sittings, or witnessed by a family member who is also a beneficiary, is legally invalid. The estate will be administered as intestate — the law decides who inherits, not you.

Mistake 2: Naming a Beneficiary as a Witness

This is one of the most common errors — and one of the most painful to resolve. If a beneficiary (or their spouse) witnesses the will, they are not disqualified from the will entirely; however, any benefit they are to receive under the will is forfeited. The rest of the will may remain valid, but the beneficiary loses their inheritance. Courts have found ways to apply equity in some cases — but there is no guarantee, and litigation is expensive.

Mistake 3: Failing to Update the Will After Major Life Events

A will is a snapshot of your circumstances and wishes at the time of drafting. Major life changes that require a will review include: marriage or divorce, the death of a named beneficiary or executor, the birth of children or grandchildren, a significant change in the nature or value of your assets, and the acquisition of offshore assets. The Wills Act contains a specific provision: if a testator dies within three months of a divorce having been finalised, the ex-spouse is treated as having predeceased the testator. But this protection expires after three months — if you do not update your will and you die after that window, a spouse you divorced years ago may still inherit.

Mistake 4: Ambiguous or Unclear Language

A will must be interpreted by the courts strictly, based on the words used. Ambiguous language creates disputes among beneficiaries that can end in litigation. Common examples include: bequeathing “my money” (which may or may not include investments), leaving a property without specifying what happens if it has been sold, or failing to provide for substitute beneficiaries if a primary beneficiary predeceases the testator. Professional drafting eliminates ambiguity by anticipating contingencies and using language that has been tested in court.

Mistake 5: Not Appointing an Executor, or Appointing the Wrong One

A will without a named executor requires the Master to appoint one — adding delay and cost. Appointing a family member as executor may seem sensible, but family members often have no experience with the Master’s procedures, SARS requirements, or the complexities of estate administration. They may also be emotionally compromised at a time when clinical, procedural precision is required. An executor who is also a beneficiary may face conflicts of interest that create family tension.

Mistake 6: Not Providing for Digital Assets and Offshore Property

This is an emerging challenge that was simply not relevant for most of my career, but has become increasingly important. Digital assets — cryptocurrency, online investment accounts, email archives, domain names — require specific provision in a modern will. Offshore property (a holiday home, a foreign bank account) requires separate consideration, as South African succession law does not automatically govern foreign-held assets. A properly drafted will addresses both.

The Solution: Have Your Will Professionally Reviewed

If your will was drafted more than three years ago, or if any of the circumstances described above have changed since you last reviewed it, you should speak to an estate attorney. A will review is a straightforward process that provides genuine peace of mind and protects those who matter most to you.