Sanya Nelson's* mother died recently. She left behind two houses and three acres of land. Her mother has five children but she did not leave a will and her siblings are now in a major dispute over their mother's estate.

Ms Nelson has five children and does not want to fall in the same trap, so she wants to know how to go about writing a will.

A will must be in writing, whether hand-written, typewritten or computer generated. Great care must be exercised by the testator (that is the person who is making the will) to express his/her wishes in plain, clear language. The testator should avoid the use of technical legal phrases.

Who can make a will?

The Wills Act sets out some legal formalities which must be observed by the testator to ensure that his/her will is accepted as valid by the court and effect given to his/her intention as expressed under the said will. The law requires that persons have the mental capacity to make a will. This means that the person must be over the age of 18 years, be of sound mind and must make the will free from fraud, force or duress.

What may be devised or bequeathed by a will?

Once you own something that has a monetary value, you need to write your will. The asset must be fully described to allow for it to be easily identified. Instead of saying 'my car' for instance, you can describe it as "my 1992 white Toyota Corolla motor car licence no. 1234 AA".

Execution of wills

A testator must sign his name at the foot or end of the will in the presence of at least two witnesses, both being present at the same time while the testator is signing. Thereafter, the witnesses must sign the will in the presence of the testator. Failure to follow this procedure makes the will invalid. A testator can have someone sign on his/her behalf and that person may either sign the testator's name or his own name, but the signature must be made in the testator's presence and based on his instruction. If a testator is illiterate or blind, and only capable of placing an 'x', the will must state that the will was read over to the testator and he/she understood the contents of the will and then placed his/her 'x' in the presence of both witnesses.

The testator and the witnesses should sign in the margin of the will opposite or near any correction, 'crossing out' or other changes, which are made to the will.

Gifts to attesting witnesses or their spouse are invalid.

The testator should ensure that the will is not witnessed by a person who is receiving a gift under the will or that person's spouse. In such cases, the will is valid, but the witness or his spouse will not receive the gift.

Who can be executor?

An executor is the person responsible for administering your estate. You must appoint at least one executor but no more than four. It is recommended that at least two executors be appointed to ensure that if one dies before the testator or refuses to act on the death of the testator, then another is available to administer your estate.

Marriage revokes a will

A will is revoked by the marriage of the testator. If you get married after writing your will, then it is crucial that you prepare and execute a new will. You are free to change your will at any time, but you must ensure that after the new will is properly executed, the old one is destroyed.

The importance of a residuary clause

A will operates from the death of the testator and, therefore, affects property acquired by the testator after the will is signed. You must ensure that a 'catch-all' clause, otherwise called a residuary clause, is used as the last paragraph to ensure that somebody benefits from this property. This clause usually commences with the words "all the rest and residue of my estate".

What if the devisee dies before the testator?

If a person to whom a gift is given in a will dies before the testator, that gift generally fails or lapses. If this happens, the testator can prepare another will and give the gift to someone else. If not, the gift will form part of your residuary estate and be dealt with according to your residuary clause. The only exception allowed by the Wills Act is where the deceased devisee is a child of the testator, then the act provides for the gift to go to the children of that child, if any.

The above are some guidelines from the Administrator General's Department to aid you in making your will. Consult an attorney-at-law if you have any queries or need further assistance.

Name changed.