WHAT ARE SOME OF THE LEGAL REQUIREMENTS FOR FORMING A TESTAMENTARY TRUST?

Before forming a testamentary trust, the testator, the person creating the trust through their will, must have the legal capacity to do so. The testator must be at least 16 years old and mentally competent. Testamentary capacity refers to the testator’s ability to understand the nature and consequences of their actions, the extent of their estate, and the impact of their decisions on their beneficiaries. To create a valid testamentary trust in South Africa, specific formalities must be followed. These formalities are outlined in the Wills Act 7 of 1953. The key requirements include:

a) The trust must be created in writing: The testator must express their intention to create a trust in their will.

b) Signature: The will must be signed by the testator or by another person in the presence and at the direction of the testator. If the testator is unable to sign, they may affix their mark (such as a thumbprint) in the presence of two competent witnesses.

c) Witnessing: The will must be witnessed by at least two competent witnesses, who must be present at the same time when the testator signs the will. The witnesses must sign the will in the presence of the testator and each other.

d) Testamentary capacity: The testator must have testamentary capacity.

e) Revocation of previous wills: It is important to include a clause in the new will that revokes any previous wills and testamentary dispositions.