South African law recognises the freedom of testation and only a person of age of 16 years and older may
make a Will.
The condition is that he or she has the mental capacity to appreciate the nature and effect of his or her act.
Even though a person has a freedom of making a Will such a Will should not be illegal, immoral, and vague
or contrary to the Constitution.
The difference between a living Will and last Will and Testament
A person has the freedom to make a living Will and last Will and Testament.
A living Will gives directive, expression and consent to whether a person can be subjected to any further
medical treatment, resuscitation or be kept alive by any artificial apparatus.
This occurs when he or she is unable or competent to give such instruction themselves, usually in
instances where a person is terminally ill or permanently unconscious.
South African law recognises that a person can decide whether to accept or refuse medical treatment.
Although this is not suicide, suicide is not a crime in terms of the South African law, but assisted suicide is
still a criminal offence.
Both Wills are similar in drafting and must conform with the requirements in terms of Section 2 of the Wills
Act but differ in contents.
A Last Will and Testament must not be regarded as a living will as they are executed at different events or
time.
A Living Will can prevent Medical Debt
A Living Will is executed when a person cannot give consent to medical treatment. While a Last Will and
Testament is executed when a testator passes away.
The purpose of a Living Will is to assist the family or whoever is left behind with the difficult decision of
whether to consent to subjecting their loved ones to more medical treatment or artificial apparatus.
Even if there is a Medical Aid the sheer expense of medical care to keep your loved one alive can be
extraordinarily high.
A Living Will can prevent your family being saddled with massive medical debt for years to come.
A Living Will removes the uncertainty
In recent years the medical fraternity have been confronted with legal challenges when it comes to making
such a decision and in certain instances have been faced with lawsuits.
A clear expression of your wishes in a Living Will assists medical practitioner when making such decisions,
but must be approached with caution or seek advice from SAMA (South African Medical Association if
faced with living will.
A clear expression assists the doctors to justify their conduct when faced with having to make a decision
especially with terminally ill patients or be subject to disciplinary action by Health Professions Council of
South Africa (HPCSA).
A Living Will preserves your dignity
Every person has the right to life, privacy and dignity in terms of the Constitution, and even though there is
a limit, these rights are protected by the Constitution.
A person’s dignity and integrity are preserved through proper planning.
Everyone has the right to have his or her dignity left intact even when he or she has no control of their body
or has no mental capacity to make these decisions at the time.
A Living Will from Greyvensteins Incorporated
It is important that the draftsman familiarise themselves with the law and express the directive clearly to
avoid confusion.
Related Services:
Wills and trusts
