Intestate Succession 101

Wishing you a fantastic Friday and weekend, 

Legal Hero 

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Wills: Five Frequently Asked Questions

This weekend might be a great time to get your ducks in a row and write a Will!

DIY Wills are, however, dangerous and can be declared invalid. If you are a Legal Hero policyholder, rather contact your hero and ask for professional assistance.

5 FAQ's answered: 

1. What are the basic formalities?

a) Write/ type (and print out) your Will and sign at the end of the document;

b) Initial every other page if your Will is longer than a page;

c) Confirm your signature in the presence of two competent witnesses not younger than 14 years;

d) Ask your witnesses to sign the Will at the end of the document in the presence of each other and you (the testator);

e) If you are unable to sign the Will, a mark (such as an “x”) would suffice if the Will is executed (signed and witnessed) in the presence of a Commissioner of Oaths who will then attend to certify the Will as soon as possible.


2. Could a Will without a date be declared invalid?

A Will without a date is not necessarily invalid, but a date would make it easier to interpret your wishes should there be more than one will. Note: a new will does not necessarily revoke our previous Will/s. Wills are read in conjunction with one another as far as possible, unless you explicitly say ‘this Will revokes all previous Wills…’


3. Is it necessary for my two witnesses to actually read my Will?

No, it is not a requirement. The witnesses merely sign to advise that it is in fact your signature on the document/ they saw you sign the document.


4. Can my parents or spouse witness my Will?

Yes, BUT if they do, they will be unable to inherit in terms of the will. A beneficiary to your will may NOT sign as witness. If they do, they will be disqualified from inheriting. You should, however, inform your parents/ spouse/ attorney/ trusted party of your Will and where it is kept. He/she would need to supply the Will when notifying the Master of the High Court of your passing (the deceased estate must be reported within 14 days).


5. Explain to me why I need to appoint an executor in my Will?

The Executor is responsible for administering the estate. Duties include paying creditors of the estate (your debts), receiving claims (if you had debtors), pay the heirs to the estate, etc. whilst in constant communication with the Master of the High Court. If you do not nominate an Executor, the Master of the High Court may appoint an executor. An Executor may also not sign the Will as a witness. If so, he/ she may not act as the appointed Executor. An Executor may, however, inherit in terms of the Will.



Note: a will is presumed to be valid until the invalidity thereof has been proven on a balance of probabilities by the person alleging same. It is strongly advised that you seek professional assistance.

Deceased Estate Administration 101

Hope is being able to see that there is light despite all of the darkness – Desmond Tutu. 

The passing of a loved one is never easy. To make matters even worse, there is a certain amount of legal work that comes with the territory. 

The deceased estate administration process in a nutshell:

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Notes on Euthanasia

In Stransham-Ford v Minister of Justice And Correctional Services and Others (4 May 2015) the High Court gave a terminally ill patient permission to be assisted in his suicide by a doctor who is willing to  do so, 'either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself.' 

A few days ago, however, leave was granted to appeal this ruling in order to develop South Africa's common law. 

101 Notes: 

There is currently no legislation/law enacted to regulate euthanasia and as pointed out by a senior State Advocate representing the National Director of Public Prosecution in the aforementioned case, to assist someone commit suicide is a crime. 

There are different variations of euthanasia: 

Doctor withholds treatment from a patient. This is a passive approach. A patient may refuse medication/ treatment in terms of one’s Constitutional right to bodily integrity. 

Where a patient is mentally capable and wants to die, the doctor may NOT pursue any treatment. The crime for doing so is assault. 

Where the patient is mentally incompetent, only a medical professional will be able to determine what would be in the best interests of the patient. Unless the patient has a living will advising that he/she does not consent to artificial life support. A living will is signed when the patient is mentally capable and only becomes relevant when the patient is mentally incompetent/ in a permanent vegetative state. At the moment a living will cannot order a medical practitioner to assist with the patient’s suicide. 

Mercy killing. This is when the doctor actively assists the dying. Regardless of whether or not there is a kind motive: mercy killing = murder. 

There is currently a bill (draft law) concerning assisted suicide. The draft law suggests three approaches: a) Leave the matter unregulated and allow the courts a discretion with regards to sentencing, etc.; b) The doctor and patient decide together; c) Set up an Ethics Committee to decide whether or not assisted suicide may be pursued. 

Note that a High Court does not have the power to make new laws and that decisions of the Supreme Court of Appeal are binding on all lower courts. An order of constitutional invalidity must, however, proceed to the Constitutional Court for confirmation. The Constitutional Court will then typically guide and order Parliament to cater for the specific instance by enacting legislation. Power is divided into three branches: legislative/ law-making (Parliament), executive (President and his Cabinet) and judicial (Courts who apply and review laws). To avoid the abuse of power, each branch functions independently with different functions.

Judge Fabricius in the Stransham case on the sacredness of life, para 14:

"People die of AIDS, from malaria by the hundreds of thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The State says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.”

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