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The implications of an unsigned will

Jan 17, 2023

Only around 30% of people who write up a will actually sign it, but an unsigned will can cause major family dramas.

Implications of an unsigned willThe only things certain in life are death and taxes, as Benjamin Franklin famously said. We will all die at some point, and when we do, our estate will end up paying fees and taxes.

While we can never cheat death, by drawing up a will and doing some basic estate planning we can provide for these fees and taxes, and even reduce some of them, leaving more of our assets as a family legacy.

If you don’t have a will, the implications for the family you leave behind are significant in terms of unnecessary expenses and delays, yet most South Africans do not have a will.

Even a simple will can protect your family, but Alex Simeonides, CEO of wills administrator Capital Legacy, says that only around 30% of people proactively sign their will.

This means that around 70% of people who go to the trouble of writing up a will often fail to sign it ‒ or require multiple reminders to do so.

Simeonides says sometimes the reason is simply that people don’t have access to a printer to print out their will, but more often there is a psychological resistance to putting your final wishes down on paper.

“Despite multiple reminders by the advisers, people are still reluctant to sign,” says Harry Joffe, head of legal at Discovery Life

An unsigned will: valid or not?

An unsigned will is not only an administrative nightmare but can also cause major family feuds.

Technically an unsigned will is not valid, but if the will was professionally drawn up, the administrator can approach the high court to rule the will as valid ‒ but this comes at a significant cost to the estate and will delay the winding-up of the estate.

Simeonides says family members who are not happy with the content of the unsigned will could argue for the estate to be processed under the intestate act which determines the benefits based on a set of rules. This may not be the intention of the deceased.

Apart from superstition, another reason people may delay signing a will is because they are over-thinking the process.

A will is often seen as a message left to loved ones and we may spend too much time over the details. At least start with a simple will that gives the executor some direction as to how to allocated the estate to your heirs. You can always update your will at a later stage.

Also discuss the will with your family. If you have made a decision to leave more funds to one child, for example because they may be younger or in more need, tell your family upfront. These discussions and explanations will make it easier for you to formalise and sign the will.

Avoid these mistakes when writing a will

Don’t include your retirement fund in the will

The payment of retirement funds are not determined by the will but by the trustees of the pension fund. “We have seen cases where a will stipulates that a retirement fund must be paid to one child and not the other. The trustees of the pension fund must consider the financial and legal dependency of all the children,” says Joffe.

An incorrectly written will can cause trouble within the family and lead to incorrect estate planning.

It is worth noting that a living annuity (purchased at retirement) does not fall under the Pensions Fund Act and one should nominate specific beneficiaries on the policy.

Make sure you align your policies with the will

Simeonides is dealing with a case where the deceased left his home and assets in a trust to his minor child. However, his life policy nominated his girlfriend as beneficiary with the request that she would use a portion of these fund to settle the mortgage on the property. She was not bound by the will and kept the full benefit which meant the estate must liquidate and sell the property to meet the mortgage obligation.

“It is important that you have specific life policies to settle any outstanding debt or to provide for specific beneficiaries,” says Simeonides.

Joffe says there are often cases where the deceased has nominated a person on the life policy yet stipulates a different person as beneficiary of the policy in the will.

“As a life company we must pay out according to the life policy nomination. Again, this can cause family arguments,” says Joffe. The only time a will has relevance to the beneficiaries of a life policy is if the estate is the beneficiary. The estate is then governed by the content of the will to pay out the funds.

Don’t rule from the grave

Joffe says it is not unusual to see parents ruling from the grave and including clauses that require children to graduate with a degree before they can inherit.

“We currently have a case where one of the children is just not university material and he is unable to inherit his portion,” says Joffe.

There are, however, situations where a parent may have reason for concern such as a drug addiction. In this case a clause keeping the funds in trust unless the child is fully rehabilitated would be a reasonable request.

Don’t nominate minor children on a life policy

There are laws governing how funds can be distributed to minor children. An estate may not pay out directly to a minor child, but a life policy must pay out directly to the child’s bank account.

“As the child is still young, this can often end up in the wrong hands and the funds are used by other family members,” says Joffe who recommends that all parents include a testamentary trust in their will.

This trust only comes into effect on the death of the parent/s and the funds are protected for the benefit and support of the child. In this case the estate would be the nominated beneficiary of the life policy and the proceeds paid into the trust.

What makes a will valid

For a will to be valid in South Africa it has to adhere to the requirements as set out in the Wills Act 7 of 1953. These requirements include that:

  • A person must be over the age of 16 years.
  • The will must be signed in ink (wet signature).
  • The will must be signed by the Testator/Testatrix, on each page and at the end.
  • The signing of the Will must be witnessed by two competent independent witnesses, both present at the same time, who sign on each page and at the end of the Will too. The independent witnesses must be 14 years or older, be mentally capable of providing testimony in court at the time of signing, not be mentioned in the will, and not be the spouse of anyone who has been specified in the will.

This article first appeared in City Press.


  1. Good Day

    I would like to find out. I have drawn up my will myself. With a template I found online via legalaid.

    My question is If I have my will signed by myself and my 2 witnesses.

    Do I need to get it certified or signed by a commissioner of oaths?

    If so, do my two witnesses need to be present and sign at the commissioner of oaths?

    I need to do what, if any legal stamp or signature needs to be on my will to make it valid. Apart from mine and my two witnesses names and signatures.

    • Your will is valid without a stamp but it may be worth getting a commissioner of oath stamp so that no-one can dispute who signed it.
      You should also make a copy which would also require a commissioner of oath stamp

  2. Good morning Maya

    kindly advise, If i were to draw up a Will, sign it off and get two independent witnesses to sign and keep it safe at home, will it be deemed valid in the court of law or should it be filled with a law firm and/ a bank institution that offers such services? …these in a way to avoid the 3.5% executor fees charged to administer estates?

    • Yes the will would be valid. Just make sure someone knows where it is! However, you would need to appoint an executor in the will. This is the person responsible for winding up the estate. It can be a family member but unless they are an expert they will have to appoint an attorney to assist and that would attract fees. Those could be negotiated, depending on the complexity.

      • Hello pls advise, my mother has an RDP house ( free government house) so in 2018 I had a family meeting with My 2 siblings and my mother to ask their permission to sign down and agree that I want to build a big house and break down the rdb and built a huge house..we agreed I will stay in it with my wife even when mom 2019 my sister went to a will at absa for my mom mind u my mom was 84 years at the time,had hearing problems and she’s doesn’t know to sign nor to read or write, can I challenge this will in this case? Please pls advise

        • If you have a written agreement signed by your mother regarding your right to remain in the house, then that would have to be taken into account by the executors.

          • Is it legal for a company to take money for a protection plan if they did not get the Will signed first

            • This is a grey area and we have picked this up as an issue. The adviser who sold the insurance product should check the will is signed.

        • Good morning ,I wanna draft my will with my company

      • Good day Mia.

        I found a will of my grandmother where I am the benificiary.Only problem is that the will is unsigned, although it is a template of the original will.Another thing is that the will was typed by a well known bank in South-Africa. I would just like to know can this will be seen as valid.

        • If it is unsigned it is not valid. You could approach the courts and use the unsigned will as indication of your grandmother’s intentions but anyone else who could legally have a claim to her estate is allowed to challenge that. If she died without a valid will, the courts will distribute according to the law of intestate


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Maya Fisher-French author of Money Questions Answered

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