Is your Will valid?

Provided by Abrahams & Gross

Topics Wills, Estates & Trusts

15 Jun 2018

Two things in life are certain – death and taxes. When we die, we have one last chance to do what we want with our belongings (our Estate), but only if a valid Will is in place.

Let’s look at the requirements of a valid Will and other related aspects like competency, amendments and signatures.

Will or codicil?

A codicil can only exist in relation to an already existing valid Will. It is an annexure or attachment and must survive the same requirements as a Will in order to be valid.

Who is competent to write a Will?

A person of 16 years and older is competent to make or write a Will, unless at the time of making the Will he or she is mentally incapable of appreciating the consequence of his or her actions.

If the Will is handwritten, the person who writes the Will is not allowed to be a beneficiary in that Will.

Who is competent to be a witness to a Will?

A person of 14 years and older and who at the time of witnessing the Will is not incompetent to give evidence in a court of law, is competent to be a witness to a Will.

A beneficiary of a Will cannot sign as a witness to the Will. A beneficiary who signs a Will as a witness will be disqualified from inheriting any benefit and therefore should not witness the Will.

Witnesses must sign in the presence of each other and of the testator/testatrix (person making the Will) or in the presence of the signing party in the instance where someone signs on behalf of the testator/testatrix.

What are the requirements of a valid Will?

The Wills Act 7 of 1953 and Regulations thereof, as well as various case law sets out the requirements for a Will to be valid, as follows:

A Will must be in writing (typed or handwritten);
A Will must be signed by the testator/testatrix anywhere on the page, except the last page where the testator/testatrix should sign at the end of the text of the last page of the Will (more on signature formalities below);
A Will must be witnessed by two competent witnesses. We recommend that the witnesses sign each page;
If the Will is more than one page, the testator/testatrix must sign every page. A witness is not legally required to sign every page, only at the end, but we recommend that they sign every page; and
It is not a legal requirement to date a Will, however, it is HIGHLY advisable that a Will is dated to determine which Will is the latest (take it as a requirement).

Signing a Will

If the testator/testatrix cannot sign the Will for whatever reason, the following options are available:

The Will may be signed by someone else in the presence of the testator/testatrix at the former’s direction, who acknowledges the signature, and in the presence of two competent witnesses; and
The testator/testatrix may sign by making a mark.

In both scenarios, a commissioner of oaths must satisfy him/herself as to the testator/testatrix’s identity and that the Will belongs to them. The commissioner signs every page and must supply his certificate at the end of the last page.

Amendments to a Will or codicil

Any amendment to a Will or any codicils (annexures) relating to the Will must be identified by the signature of the testator/testatrix or by the person who made it in his/her presence and direction and in the presence of two witnesses. The amendment must also be identified by the signatures of these witnesses.

Should the amendment be identified by the making of a mark by the testator/testatrix or the signature by some other person in their presence and direction, a commissioner of oaths has to certify and sign as set out above.

Conclusion

In the absence of a Will, or worse yet, a valid Will, a person’s estate will devolve according to the laws of intestate succession as governed by the Intestate Succession Act 81 of 1987. It is imperative that one has a valid Will to avoid unintended devolution.