Requirements for a valid will in South Africa
10 Oct 2011
Having slaved away your entire life to accumulate wealth, and having spent further time, energy and possibly money on drawing up a will for the purpose of distributing your riches unto those deemed most worthy, you will want to ensure that you have a valid Will and that your good intentions are not undone through carelessness or lack of knowledge.
Our law now only recognises the so-called underhand Will – also known as a Statutory Will. Because it is so important that a Will is authentic and valid, and since, under the circumstances, it is not possible to check instructions after the death of the testator, there are highly formalised and regulated procedures in place to ensure the document is indeed a valid will.
The basic requirements for ensuring that you have a valid Will are set out in the Wills Act 7 of 1953, as amended, which apply to any testator who died on or after 1 October 1992.
Although it is not a named requirement in the Act, every Will must be in writing. This is gleaned from the definition of a Will and the reference ‘signed’ and ‘document’ in the Act. In practice, ‘writing’ includes not only a handwritten document, but also a typed or word-processed document. An oral Will is unacceptable. A video recording will also not be accepted – despite what you might have seen in the movies!
The basic formalities required for the execution of a valid Will are as follows:
The document must be signed by the testator (A testator is the person whose scheme of devolution is contained in the Will. The female version of ‘testator’ is ‘testatrix’).
The Will must be signed at the end of the document (as opposed to the bottom of the page). This simple provision, which often trips up an inexperienced testator, has led to many Wills being declared invalid.
If the Will consists of a single page, it must be signed at the end of that page.
If the Will consists of more than one page, each page must also be signed by the testator.
Recent amendments to the Act brought about certain relaxations in the execution of Wills, one of which was that the definition of the term ‘signed’ is not limited to refer only to a full signature, but also includes the testator’s initials.
The testator must sign his Will (or confirm his signature) in the presence of two or more competent witnesses, who must be present at the same time.
The witnesses must also sign the Will, although, in their case, they need merely to sign at the end of the document and not on each page if the document consists of more than one page.
The witnesses must sign in the presence of each other and the testator.
For best practice, we recommend that the witnesses sign each page, as well as at the end of the document. We also recommend that all parties sign in full on each page.
It is not necessary to have an attestation clause or even to date a Will for it to be valid. However, it is important to date a Will because it makes it easier to determine the sequence, if the testator has left behind more than one valid Will, and so, to ascertain whether it is the Last Will and Testament or whether the document has since been revoked, or is revoking another valid Will.
The Act determines that anyone over the age of 14 years at the time he witnesses the Will and who is competent to give evidence in a court of law, may act as a witness.
It is not necessary for the witness to read the document or even to know that it is a Will, as his function is limited to witnessing the signature of the testator.
Anyone who writes out a Will or who witnesses a Will is disqualified from receiving any benefit from that Will. Even the spouse of that person is disqualified. So it is important to select witnesses who are not beneficiaries or potential beneficiaries in the Will. By the same token, anyone who witnesses a Will cannot be appointed as an executor.
It is interesting to consider the position of a testator who is incapable of physically signing a Will because an impediment or infirmity prevents him from doing so. The Act makes provision for that person to direct someone else to sign the Will on his behalf.
Similarly, the Act provides for a situation where a person is illiterate or infirm and signs a Will by making a mark or impressing a fingerprint. The certificate that must be affixed to the Will in those circumstances requires prudent application and once again, many a Will has failed for not fully complying with these requirements of the Act.
A testator may want to make certain amendments to his Will by deleting, adding or amending words or phrases. A more prudent approach would be either to draft a codicil or to prepare a fresh Will. But if amendments are made, strict formalities must be complied with to ensure that these amendments are valid and will be given effect.
Many a Will has failed (and been declared invalid) for lack of compliance with the formalities, frustrating the testator’s intentions and causing hardship to disappointed beneficiaries. Given its importance, it seems foolhardy to risk that the document might be declared invalid by failing to ensure that its execution is supervised by a suitably qualified person with the know-how to draft a valid will.
Related article – Draft a valid will in 10 steps
(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)