Your Will: is it valid?
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 (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. It must survive the same requirements as a Will in order to be valid.
Who is competent to make/write a Will?
A person of 16 years and older is competent to make/write a Will, unless at the time of making the Will he/she is mentally incapable of appreciating the consequence of his/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 who signs a Will as a witness will be disqualified from inheriting his/her 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?
These requirements are gleaned from the Wills Act 7 of 1953 (‘the Act’) and Regulations thereof, as well as from case law.
1) A Will must be in writing (typed or handwritten);
2) 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);
3) A Will must be witnessed by two competent witnesses. We recommend that the witnesses sign each page;
4) 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
5) 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 for whatever reason, the following options are available to him/her:
1) 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
2) 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 him/her. 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 relating to the Will has to 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 his/her presence and direction, a commissioner of oaths has to certify and sign as set out above.
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.
To be sure, consult an attorney. At Abrahams & Gross we understand the need for comprehensive advice on all aspects of Estate Planning, Administration of Estates and Wills, Trusts and Curatorships to ensure that your loved ones are sufficiently provided for. Please contact us if you need assistance.
t. 021 422 1323 | e. email@example.com
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