Living Will vs Last Will: South African Guide

Key takeaways

• A living will and a last will do different work in South Africa. A living will is an advance healthcare directive: it records treatment preferences for a future time when the maker is still alive but cannot make or communicate the relevant decision. A last will, also called a testament, operates after death and directs how the deceased estate should be administered and distributed, subject to the law.
• One document does not replace the other. A living will cannot appoint an executor, distribute a house or change an heir. A last will cannot reliably act as a bedside treatment instruction because it is designed for estate administration after death and may not be located until then.
• South Africa has a detailed statutory formality regime for last wills under the Wills Act. Living wills are not testamentary documents under that Act, and no dedicated statute sets out one universal living-will form. Their use must instead be understood with the National Health Act’s consent framework, constitutional rights, current professional guidance and the particular clinical facts. The Health Professions Council of South Africa instructs practitioners to consider directives and respect a valid advance refusal when a patient lacks decision-making capacity, while recognising that a directive cannot compel treatment outside acceptable standards of care.
• Prepare the documents separately, for their separate audiences. Discuss the healthcare directive with a treating practitioner and the people who may need to produce it. Execute and store the last will in accordance with the Wills Act and make sure a trusted person knows where the signed original is kept.

Compare the two documents first

The label is less important than the function. A document headed “last wishes” may mix medical, funeral, digital-account and estate instructions. Separate each instruction by the legal process and decision-maker that must use it.

1. Understand what a living will can do

A living will is usually an instructional advance directive. It is made while a person can decide for themselves and records what healthcare they would refuse or prefer if a specified future condition leaves them unable to decide or communicate. It may address matters such as resuscitation, ventilation, artificial nutrition and hydration, dialysis, surgery, antibiotics, intensive care, pain relief or comfort-focused care, but a generic list is not automatically suitable for every person or condition.

The National Health Act starts from informed consent. Sections 6 to 8 require information about the proposed service, material risks and benefits, alternatives and the right to refuse, and provide that a health service ordinarily may not be delivered without informed consent. Section 7 also addresses consent where the user cannot consent, including consent by a person mandated in writing, an authorised person, or specified family members where no mandate or other authority exists. An emergency exception can apply where delay may cause death or irreversible harm and the user has not expressly, impliedly or by conduct refused the service.

The Act does not use the Wills Act’s execution model for an advance refusal. The current HPCSA withholding-and-withdrawing guidance says a directive should be considered, that its purpose is to maintain patient autonomy after loss of decisional capacity, and that a practitioner must respect a valid advance refusal. The same guidance limits the directive: it cannot require care outside acceptable professional standards.

This framework should not be simplified into “all living wills are automatically enforceable” or “living wills have no effect.” The Department of Health Knowledge Hub’s advance-directive planning material records the absence of a dedicated validating statute and the importance of current, clear, communicated instructions. The 2016 Supreme Court of Appeal judgment in Minister of Justice v Estate Late Stransham-Ford expressly left the legal effect of a person’s advance wishes for another case. It also distinguished lawful cessation of non-beneficial treatment from physician-assisted death.

The practical goal is therefore to create reliable evidence of an informed, current and applicable healthcare choice, not to imitate a last will.

2. Understand what a last will can do

A last will determines how a person’s deceased estate should devolve after death. It can identify heirs, make bequests, nominate an executor, create testamentary arrangements and address appropriate provisions for minor beneficiaries. It does not itself place the nominated executor in office: the Master of the High Court appoints the executor or other estate representative through the statutory administration process.

The Wills Act controls execution formalities. The Department of Justice’s current public guidance explains that a will must be in writing, signed at its end by the testator in the simultaneous presence of two or more competent witnesses, and attested by those witnesses in the presence of the testator and one another. Where there is more than one page, the testator must also sign the other pages. Different certification rules apply where another person signs for the testator or the testator signs by a mark.

Capacity and age rules also differ from an advance healthcare discussion. The Justice guidance states that a person aged 16 or older may make a will unless incapable of appreciating the consequences of doing so at the time. Witnesses must be at least 14 and competent to give evidence. A beneficiary, the beneficiary’s spouse and certain people involved in writing or signing the will can face disqualification consequences, subject to statutory exceptions.

Do not use a general template as proof that the execution was valid. Record who prepared the will, which version was signed, where it was signed, who was present, whether every required signature appears and where the original is stored. The will-drafting checklist can help organise that separate process.

3. Do not place one set of instructions inside the other

Combining both documents creates a retrieval problem even before a legal problem. A last will is commonly placed in secure original-document storage and produced for the Master after death. A healthcare directive may be needed during an ambulance transfer, admission, procedure or deterioration while the person is alive.

Use a coordinated file with distinct documents:

1. an advance healthcare directive containing the maker’s treatment instructions and values;
2. any written healthcare mandate or representative appointment prepared on appropriate advice;
3. a separate last will complying with testamentary formalities;
4. a short location record stating who holds each current document;
5. a review log showing dates discussed, confirmed, replaced or revoked; and
6. emergency contact details that do not disclose more medical information than necessary.

Do not attach the only signed living will to the only original last will and lock both away. Do not insert asset gifts or executor powers into a healthcare directive. Do not expect a hospital to interpret a testamentary clause as a clinically usable refusal.

4. Make the healthcare directive specific enough to apply

The most useful directive connects a medical circumstance to a preference. It should help the treating team answer three questions: does this document belong to the patient, was it made while the patient could decide, and does the present condition fall within the instruction?

Work through these elements with a suitably qualified healthcare practitioner and, where needed, a lawyer:

• full identity and reliable contact details;
• date and place of signing;
• a statement that the maker is acting voluntarily and understands the document;
• the conditions or loss of capacity that activate the instruction;
• treatments refused, accepted or to be considered in those circumstances;
• goals and values that explain how uncertain situations should be approached;
• preferences about pain relief, comfort care and communication;
• the name and contact details of any healthcare representative or trusted contact;
• the relationship between the directive and any existing care plan or do-not-attempt-resuscitation decision;
• the process for review or revocation; and
• signatures or supporting capacity evidence appropriate to the advice received.

Avoid contradictions such as refusing every intervention while demanding an intervention that depends on the refused care. Avoid vague statements such as “no machines” without identifying the clinical circumstances and goal. Avoid fixed medical claims copied from another person’s form.

The HPCSA guidance says the patient should be supported to reach and communicate a decision where possible, even when decision-making ability is intermittent or communication is difficult. Capacity is decision- and time-specific; a diagnosis or disability alone does not answer whether a person can make the particular healthcare decision.

5. Treat a healthcare representative and executor as different roles

A healthcare representative participates in treatment decisions while the patient is alive and cannot decide. An executor administers the deceased estate after appointment by the Master. The same trusted person may be named for both functions where legally appropriate, but the powers, timing, records and accountability are different.

Do not assume that a generic power of attorney is automatically an enduring healthcare authority after the maker loses mental capacity. Ordinary agency principles and section 7 of the National Health Act must be analysed carefully. The Act recognises written mandates for consent, but the exact scope and durability of a particular document can be disputed. Use a healthcare-specific document and obtain advice rather than relabelling a property or banking power of attorney.

Discuss the role before naming anyone. A proposed representative should know the maker’s values, be willing to communicate with clinicians, be reachable, manage family disagreement and distinguish their own preference from the patient’s instruction. A proposed executor needs different skills: securing estate property, reporting the estate, working with creditors, preparing accounts and implementing the valid will under the Master’s supervision.

6. Store and communicate each document for its job

For a living will or advance directive:

• give a current copy to the treating doctor or care team and ask how it will be recorded;
• give a copy to the authorised representative and one reliable contact;
• keep an accessible copy with medical information used in an emergency;
• record the date, version and recipients;
• replace superseded copies rather than leaving conflicting versions in circulation;
• discuss material changes in diagnosis, treatment or values with the treating practitioner; and
• never include banking passwords, device access codes or unnecessary identity records.

For a last will:

• protect the signed original from loss, damage and unauthorised alteration;
• tell a trusted person where it is held and how it can be obtained after death;
• keep a version history and destroy revoked originals only on specific advice;
• review beneficiary, executor, guardian, trust and asset arrangements after major life changes; and
• ensure amendments or codicils follow the applicable execution requirements.

The Department of Justice cautions that the signed original must be kept safely and be available for estate reporting. The deceased-estate reporting checklist covers the later Master’s process; it is not a healthcare planning tool.

7. Review the documents after different trigger events

Reviewing one document does not automatically update the other. Use separate triggers.

Review the advance directive after:

• a serious diagnosis or major change in prognosis;
• a new procedure, device or long-term treatment;
• a change in the chosen healthcare representative;
• a move to a new care setting or province;
• a material change in beliefs or treatment preferences;
• a conflict between the document and a current care plan; or
• any event that makes the wording difficult for the current clinical team to apply.

Review the last will after:

• marriage, divorce or the start or end of a life partnership;
• birth, adoption, death or dependency changes in the family;
• acquiring or disposing of significant assets or business interests;
• a change in debt, liquidity, insurance, trust or tax position;
• an executor or beneficiary becoming unsuitable or unavailable;
• relocation or acquiring assets in another country; or
• a change in the law or estate plan identified by an adviser.

Date every review even if no wording changes. A recent clinical discussion can help show that an advance directive still reflects the patient’s wishes. A last will should only be amended through a legally valid execution process, not by handwritten notes, tracked changes or an unsigned replacement file.

8. Respond carefully when the patient can no longer decide

If a healthcare decision is required and the patient lacks capacity:

1. establish the immediate clinical decision and whether delay creates an emergency;
2. search the health record and trusted contacts for the latest directive;
3. verify the patient, date, authenticity and evidence of any later revocation;
4. assess whether the present condition and proposed treatment fall within the wording;
5. identify any written mandate, legal authority or statutory family route;
6. involve the senior responsible practitioner and the relevant healthcare team;
7. record the clinical, ethical and legal reasoning; and
8. escalate unresolved conflict through the institution’s clinical-ethics, legal or court process as urgency requires.

A family member does not acquire unlimited power merely by producing a copy. Nor should a clinician disregard a relevant directive merely because another relative disagrees. Section 7 supplies an order for certain substitute consent situations, while the HPCSA guidance requires attention to a valid advance refusal and the patient’s best interests.

If the patient currently has capacity for the decision, the patient’s informed choice is the starting point. A previous directive is evidence of earlier wishes, not a device for overriding a competent patient’s present decision. Record any revocation or change and distribute the updated version promptly.

9. Keep refusal of treatment separate from assisted dying

A living will should not be described as a request for a clinician to cause death. It usually concerns withholding or withdrawing specified treatment and allowing the underlying condition to follow its course, with appropriate palliative and comfort care.

In Stransham-Ford, the Supreme Court of Appeal set aside an order concerning physician-assisted death and stressed that the legal questions had to be decided on proper facts. The judgment recognised that ceasing treatment serving neither a therapeutic nor palliative purpose may be lawful, but it expressly did not decide the advance-living-will question.

This distinction matters when drafting and when talking to a family. Record the treatment choice, the circumstances, the care goal and the continuing comfort measures. Do not promise that a broad “right to die” clause will be implemented, and do not ask a healthcare representative to authorise conduct that the law or professional standards prohibit.

10. Resolve disagreements with a decision-ready record

Disputes often arise because the documents are missing, inconsistent, outdated or addressed to the wrong decision-maker. Build a neutral record containing:

• the current and superseded directives;
• proof of signing, identity and date;
• notes of clinical discussions and capacity assessments;
• the current diagnosis, prognosis and treatment decision;
• the applicable care plan and practitioner notes;
• the written mandate or other representative authority;
• a chronology of family and clinical communications;
• the separate last will and its custody record only where actually relevant; and
• the precise decision or order requested.

Do not post medical documents or family allegations publicly. Limit disclosure to authorised recipients and the records necessary for the decision.

The lawyer consultation preparation guide can help structure the handover. The legal-services hub and Lexuno lawyer directory can support provider discovery, but they do not determine capacity, clinical appropriateness, document validity, urgency or the outcome of a dispute.

Urgent legal or clinical-ethics advice may be needed where treatment is imminent, the directive’s authenticity or current relevance is challenged, representatives disagree, the wording is internally inconsistent, the requested care conflicts with professional standards, or an application to court may be necessary.

A two-document completion check

Before treating the planning exercise as complete, confirm:

Healthcare file

• the directive identifies the maker and current version;
• the activating circumstances and treatment instructions are understandable;
• a practitioner has discussed clinical implications and contradictions;
• any representative has accepted the role and has the latest copy;
• the care team knows the directive exists and where it is recorded;
• old copies are controlled; and
• an emergency contact can produce the document promptly.

Estate file

• the will reflects the current estate and intended heirs;
• the execution satisfies the Wills Act requirements for the chosen signing method;
• witnesses and beneficiaries were selected with disqualification risks in mind;
• the proposed executor has been consulted;
• arrangements for minors, dependants, trusts and liquidity have been reviewed where relevant;
• the signed original is protected; and
• a trusted person knows how to retrieve it after death.

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