Ten Essential Things to Know Before Drafting a Will

Today, the Minister of Justice and Constitutional Development, Mmamoloko Kubayi, officially launched National Wills Week, which runs from 15 to 19 September 2025. The week is meant to highlight why having a will matters and to encourage people to put one in place to protect their loved ones.

A will is one of the most important legal documents you can have. It allows you to decide what happens to your estate and affairs after your death. Without a valid will, your estate will be divided according to the rules of intestate succession, which often does not reflect a person’s true wishes.

Writing a valid will isn’t just about putting your intentions on paper. There are legal requirements and practical issues you need to get right. Here are ten key things to consider:

1. Intention (Animus Testandi)
You must genuinely intend to make a will and do so of your own free choice. If you are pressured, tricked, or influenced, the will can be invalid from the start.

2. Capacity
You must be at least 16 years old and understand what it means to make a will. This includes being mentally capable of grasping the effect of your decisions.

3. Legal Formalities
The law sets out strict rules for how a will must be signed and witnessed. It has to be in writing, signed at the end, witnessed by two competent people at the same time, and if someone signs on your behalf or you sign with a mark, extra steps like certification by a commissioner of oaths are required.

4. Amendments and Revocation
Any changes must also follow the formal rules. To revoke a will, you must both intend to cancel it and take a recognised legal step, like making a new will with a revocation clause or destroying the old one.

5. Beneficiaries and Witnesses
Not everyone can inherit. A witness (or their spouse) usually cannot benefit from the will they signed, unless a court makes an exception.

6. Freedom to Decide
You can generally leave your estate as you choose, but not if your wishes are unlawful, against public policy, or too vague. Claims for maintenance by children or a surviving spouse can also reduce what’s available for beneficiaries.

7. Types of Bequests and Legal Tools
Different legal mechanisms exist for structuring inheritances, from simple gifts to trusts, usufructs, or substitutions. Each carries consequences, so they must be chosen carefully.

8. Clarity of Language
A will should be easy to read and free from vague or confusing terms. Ambiguity often leads to costly disputes and court involvement.

9. Appointing an Executor
It’s best to nominate someone you trust to administer your estate. You can also allow them to appoint co-executors and, if you wish, release them from needing to provide security.

10. No Binding Contracts on Succession
Generally, you cannot contract in advance about who will inherit your estate (a pactum successorium). There are narrow exceptions, like succession clauses in antenuptial contracts or certain donations on death, but these must comply with the formalities of wills.

So, don’t leave your family’s future to chance. A valid will gives you the power to decide what happens to your estate and protects your loved ones from uncertainty and disputes…believe me, there will be disputes. Take the time to draft your will as soon as possible. It’s one of the most important acts of care you can make.

Written by Theo Tembo