Authored By: Sisanda Hlatshwayo
Boston City Campus
Abstract
Most people opt to get their Wills drafted by financial institutions due to affordability or the service being free. It is important to understand the difference between a Will that was drafted by a financial institution and a Will that was drafted by a legal professional to make a sound decision. This article compares Wills that are drafted by financial institutions and Wills that are drafted by legal professionals to enhance better understanding and prevent disappointments after the death of the testator. Legal professionals studied the law and are qualified in the legal field. Therefore, they have legal knowledge about the legislation that governs Wills, including how to draft a valid Will as required by the Wills Act 7 of 1953. Financial institutions may have benefits for drafting a Will with them. However, there are pros and cons for drafting a Will with both a financial institution and legal professionals.
Introduction
Due to financial affordability, many people opt for their Wills being drafted and executed by financial institutions rather than legal professionals. Most financial institutions draft Wills for free while some draft them at either an affordable or negotiable price. A Will is important as it protects your estate/s and enables you to choose the beneficiaries of your estate/s. It is crucial to understand the difference between a Will that was drafted by a financial institution and a Will that is drafted by a legal professional, including the pros and cons of the Wills, to make an informed decision on who must draft your Will and who to appoint as the executor of your estate/s. There are pros and cons that are associated with Wills that are drafted by financial institutions. However, it is important to understand the difference between Wills that are drafted by financial institutions and Wills that are drafted by legal professionals to minimize risks and avoid disappointments when you pass away.
Research Methodology
The Doctrinal method of research was used to conduct this research. The research was done using primary sources such as statutes and laws and secondary sources such as journals and online legal articles written by diverse authors.
Legal Framework in South Africa
Financial institutions have terms and conditions of drafting a Will for testators. Financial institutions are often appointed as the executor of the deceased’s estate/s if the testator drafts a Will with them. Section 51(1) of the Administration of Estates Act 66 of 1965 states that the executor may receive from the estate/s renumeration that may have been fixed by the deceased by will otherwise the renumeration may be assessed according to a prescribed tariff and will be taxed by the Master of the High Court. i
What is a Will?
A Will, also known as a testament, is a document which states how you want your estate/s to be distributed after your death. iiIn a Will, the testator states who your beneficiaries must be and who the executor of their estate/s must be. According to the Wills Act 7 of 1953, the requirements of a valid Will are:
- A person must be 16 (sixteen) years or older.
- The Will must be written. This means that the Will can either be handwritten or typed. If the Will is handwritten, remember that the person who writes the Will is not allowed to be mentioned as the beneficiary of that specific Will.
- The testator must sign each page of the Will, including the last page. Two competent witnesses must also sign the Will. A qualified competent witness is a person who is 14 (fourteen) years or older. iii
The Difference Between a Will Drafted by a Financial Institution and a Will Drafted by a Legal Professional
- Wills Drafted by Financial Institutions
Although financial institutions may draft Will for free, there are additional costs that testators must be aware of, which may fall upon the beneficiaries after death. These costs include executor fees, monthly Will management, safekeeping fees, property valuation costs, conveyance attorney fees and potential legal dispute fees. ivBanks are not estate specialists. Therefore, if the deceased was a sole account holder or their family is not aware of the existence of the deceased’s Will, it may be inaccessible after the death. Most banks are not obligated to notify heirs and executors about the existence of the Will.v There are requirements of a valid Will that are stated in the Will Act 7 of 1953. If the financial institution uses their own template or does not draft the Will according to the legal requirements of a valid Will, the Will will be declared invalid. If the Will is invalid, the testator’s last wishes will not be carried out. Instead, the law will administer the testator’s estate/s to their spouse and children. If the testator had no spouse and children, their estate/s will be administered to the necessary family members as determined by the law. If the Will is invalid, the deceased estates will be governed by Intestate Succession Act 81 of 1987. viShould there be a situation where the financial institution does not release the Will and submit it to the Master of the High Court within 14 (fourteen) days as required by Administration of Deceased Estates Act 66 of 1965. On the other hand, financial affordability is the benefit of drafting a Will with a financial institution as it is either free or at an affordable or negotiable price. Some financial institutions may offer financial benefits for drafting a Will with them. Financial institutions may ensure that your Will aligns with your financial portfolio and offer insurance policies.
- Wills Drafted by Legal Professionals
When you draft a Will with the assistance of a legal professional, it prevents unwanted complications, costs are minimized, the testament is accurately reflected, and the Will becomes legally enforceable. A legal professional will ensure that your Will meet the legal requirements and is valid as they are trained in the legal field and specialization of deceased estates. Legal professionals ensure that legal compliance is adhered to. A legal professional will ensure that your Will is tailored to your needs and wants and will take your circumstances and marital status and children into account when drafting the Will.vii The testator may seek legal advice regarding the correct way to draft their Will, which will leave them and their beneficiaries satisfied with the outcome. This ensures proper Will planning and prevents potential legal disputes after the death of the testator. The legal process of drafting a Will be followed by the legal professional as they will submit the Will to the Master of the High Court after the death of the testator, which avoids delays whereby the Will is inaccessible. During the process of seeking legal advice, a legal professional will advice the testator on who to choose as their executor, the executor fees and any potential risks that may arise. The legal professional will advise the testator on additional costs such as tax. Legal advice helps testators to make sound decisions. A professionally drafted Will is less likely to cause problems after the death of the testator and will ensure that their last wishes are carried out accordingly. The Will can be amended in the event of a divorce, marriage, birth of children or other life circumstances that may need the Will to be updated. viiiOn the other hand, there are consultation fees that the testator will be required to pay to seek legal advice from a legal professional and fees for the attorney services of Will Drafting.
Suggestions / Way Forward
It is advisable that testators draft their Wills with the assistance of a legal professional rather than a financial institution to prevent disappointments after death. Legal professionals are qualified in law. They will give testators sound legal advice as they are professionally qualified to give legal advice and conduct required legal research for any concerns regarding Will drafting. They have the necessary legal knowledge that will prevent problems after the death of the testator. Should the testator prefer their Will drafted by a financial institution instead of a legal professional, it is advisable that they seek legal advice before making the decision. This will ensure that the Will is drafted according to the legal requirements and there are no disappointments after the death of the testator. Legal professionals may be costly but the price of an improperly drafted Will or unexpected delays after the death of the testator is greater than the fees of consulting a legal professional. When drafting a Will with a financial institution, research the reviews of previous testators or beneficiaries of previous testators and be aware of the terms and conditions. Should you not understand the terms and conditions or contracts involved, it is advisable to consult a legal professional for further assistance. The Wills Act 7 of 1953 states that anyone who is 16 (sixteen) years or older may draft a Will. This includes, individuals, the assistance of financial institutions, legal professionals or Will drafters. The law can be improved to set requirements for financial institutions that draft Wils to follow that will benefit testators and their beneficiaries and prevent other laws from being broken. Legislation must be set to govern financial institutions that draft Wills. This should be done to prevent financial institutions from withholding or delaying the release of Wills after the death of the testator as the process of retrieving the Wills involve court orders. This will ensure that financial institutions remain trustworthy and prevent fraud.
Conclusion
It is crucial to understand the difference between a Will that was drafted by a financial institution and a Will that is drafted by a legal professional, including the pros and cons of the Wills, to make an informed decision on who must draft your Will and who to appoint as the executor of your estate/s. Financial institutions are often appointed as executors of the deceased’s estates. However, there are pros and cons of drafting a Will with a financial institution and drafting a Will with the assistance of a legal professional. Financial affordability is the benefit of drafting a Will with a financial institution as it is either free or at an affordable or negotiable price. Some financial institutions may offer financial benefits for drafting a Will with them. On the other hand, there are requirements of a valid Will that are stated in the Will Act 7 of 1953. If the financial institution uses their own template or does not draft the Will according to the legal requirements of a valid Will, the Will will be declared invalid. If the Will is invalid, the testator’s last wishes will not be carried out. Instead, the law will administer the testator’s estate/s to their spouse and children. If the testator had no spouse and children, their estate/s will be administered to the necessary family members as determined by the law. If the Will is invalid, the deceased estates will be governed by Intestate Succession Act 81 of 1987. A professionally drafted Will is less likely to cause problems after the death of the testator and will ensure that their last wishes are carried out accordingly. The Will can be amended in the event of a divorce, marriage, birth of children or other life circumstances that may need the Will to be updated. When you draft a Will with the assistance of a legal professional, it prevents unwanted complications, costs are minimized, the testament is accurately reflected, and the Will becomes legally enforceable. A legal professional will ensure that your Will meet the legal requirements and is valid as they are trained in the legal field and specialization of deceased estates. However, there are fees that testators need to pay for professional Will drafting, such as consultation fees and Will drafting fees by legal professionals. It is advisable that testators draft their Wills with the assistance of a legal professional rather than a financial institution to prevent disappointments after death. Legal professionals are qualified in law. Legal professionals have the necessary knowledge that will prevent problems and disappointments after the death of the testator. Could a Will drafted by a financial institution rather than a legal professional be the right choice?
References
Primary sources:
Wills Act 7 of 1953
Administration of Deceased Estates Act 66 of 1965
Intestate Succession Act 81 of 1987
Secondary sources:
Paula Smit, The importance of having a will, Gawie le Roux Institute of Law, https://www.gawieleroux.co.za/blog/importance-having-will.
Aamena Sayed, Is Free Will Drafting Really Free? | Understanding the Hidden Costs, Burger Huyser Attorneys (Feb, 18, 2025), https://www.burgerhuyserattorneys.co.za/is-free-will drafting-really-free-understanding-the-hidden-costs-implications/.
Admin, Why Leaving Your Will at the Bank is a Risk You Shouldn’t Take, Ahmen & Hamman (Aug, 26, 2025), https://ahmenlaw.co.za/leaving-your-will-at-the-bank-is-a-risk/.
