Your Will could still fail you: These are the mistakes that can derail your estate plans - IOL

Having a Will is important, but signing errors, outdated details and overlooked assets can still create problems for your family.

Having a Will is an important part of putting your affairs in order, but it is only useful if it is legally valid, kept up to date and can actually be found when it is needed.

With National Wills Week highlighting the importance of estate planning, there are several potential pitfalls that South Africans should be aware of – from incorrect witnessing and outdated beneficiaries to assets that a Will does not necessarily control.

Nearly two-thirds of respondents in Sanlam's 2026 Wills Survey said they did not have a Will, while only 28% said they had one that was signed, witnessed and stored safely.

The survey of 1,200 people found that 65% did not have a Will. Sanlam notes that the annual survey uses a convenience sample and is not nationally representative.

There are also problems among people who have taken the step of having a Will drafted.

Discovery Wills and Trust Services found that six in 10 clients who were not members of its Vitality Money programme did not return their completed Wills for secure storage. Among the Wills that were returned, 18% contained signing errors.

Harry Joffe, head of Legal Services at Discovery Life and Discovery Wills and Trust Services, says the challenge is therefore not simply getting people to write Wills.

“People know that a Will is important; they’ve started one. The challenge is making sure that when they do complete the process, they end up with a Will that is correctly signed in accordance with the Wills Act and safely stored,” he says.

One of the most basic problems is failing to comply with the requirements governing the signing and witnessing of a Will.

Old Mutual Will says a non-compliant Will can sometimes still be accepted if the High Court directs the Master of the High Court to do so. However, that requires a court application, which brings additional costs and no guarantee of success.

Another potential trap is asking someone who is due to benefit from the estate to act as a witness.

Section 4A of the Wills Act generally prevents a witness, as well as that person's spouse, from receiving a benefit under the Will. Old Mutual says a court can declare the person competent to inherit, but this is another situation that can create unnecessary complications.

The consequences of not having a valid Will can be significant. Instead of the deceased's wishes determining how the estate is distributed, the Intestate Succession Act applies.

That means a person cannot use a Will to nominate their preferred executor, make specific bequests or establish a testamentary trust for a minor child.

Figures from the Master of the High Court dating back to 2022 indicate that about 85% of South Africans die without a valid Will.

Estate planning can become particularly important where minor children are involved.

Worth, an independent financial education provider, says children under 18 cannot legally manage an inheritance themselves. If a parent dies without a Will, or the Will does not make suitable provision for minor children, money can be paid into the Guardian's Fund, which is administered by the Master of the High Court.

The Guardian's Fund held R18.8 billion for beneficiaries as at March 31, 2025, according to figures cited by Worth from its latest annual report.

A Will can instead establish a testamentary trust and specify how money inherited by a child should be managed, including for expenses such as education and care.

Worth points out, however, that a basic Will prepared free of charge would not normally include a testamentary trust.

Parents can also nominate a guardian for their children. Old Mutual Will cautions that such a nomination does not override the rights of a surviving parent who already has guardianship.

If there is no surviving guardian, the High Court remains the upper guardian of minors.

Writing a Will is not a once-off exercise. Circumstances change, and an estate plan can quickly become outdated.

Old Mutual Will recommends reviewing a Will annually, while certain life events should prompt an immediate rethink.

These include getting married or divorced, having a child, the death of a spouse, beneficiary, executor or nominated guardian, buying or selling property, and significant changes to assets or debts.

Starting or selling a business, emigrating or acquiring assets overseas can also mean that changes are required.

Divorce has an additional complication. Under the Wills Act, if someone dies within three months of being divorced, their former spouse is generally treated as having died before them when considering a Will made before the divorce.

After the three-month period has passed, that protection falls away. An unchanged Will could therefore once again result in the former spouse inheriting.

Even a valid and up-to-date Will does not necessarily determine what happens to every asset you own.

Retirement fund members, for example, should keep their beneficiary nomination forms current. Life insurance beneficiaries should also be nominated directly with the insurer rather than relying solely on a beneficiary being named in a Will.

Digital assets are another area that can easily be overlooked.

FNB says a person's digital estate can include email and social media accounts, online banking and investment accounts, cryptocurrency, cloud storage, photographs, loyalty programmes, domain names and online businesses.

These assets may be difficult for relatives to identify or access after someone's death, particularly where they are protected by passwords and other security measures.

“Many people do not realise the extent of their digital estate until they start documenting it. The challenge for family members is that these assets often remain hidden behind usernames, passwords and security measures,” says Heather Muller, FNB Fiduciary estate product head.

FNB recommends compiling an inventory of important online accounts and digital assets, including details of any password-management system or digital vault being used.

However, passwords should generally not be written into a Will. Because a Will may become accessible during the administration of an estate, sensitive login information is better kept separately in a secure record that can be accessed by a trusted person.

For Joffe, the lesson from Wills Week goes beyond simply encouraging more people to have a Will.

“The conversation needs to extend beyond simply encouraging more people to get a Will,” he says. “Every year during Wills Week, we tell people that they need a Will. But our data suggests awareness is only part of the challenge.”