My will – is it valid?

In our previous newsletter we discussed the consequences of dying without leaving a valid will, specifically relating to the impact thereof on your spouse and next of kin.

The question that now comes to mind is “what is a valid will?”.

Section 2(1) of the Wills Act, Act No. 7 of 1953, as amended, (the Act), contains a list of requirements essential for drafting a valid will.  No will executed on or after 1 January 1954 shall be valid unless –

a)             The will is signed at the end thereof by the testator or by some other person in his presence and by his direction (Section 2(1)(a)(i) of the Act)

This subsection contains three important elements:

• i)  The will should be signed.  Currently the definition of “sign” is interpreted by our courts to either mean a full signature, or initials only.  However, in the event that the testator signs by means of a mark or a stamp instead of his original handwritten signature, a Commissioner of Oaths needs to certify that this is indeed the mark of the testator.  Section 2(1)(a)(v) of the Act has further provisions relating to testators signing by means of a mark, which we will not deal with at this stage.
• ii)  The will should be signed by the testator, or by some other person in his presence and by his direction.
• iii) The will should be signed at the end thereof, immediately after the final paragraph, leaving no significant gap between the final paragraph of the will and the attestation clause.

b)             Such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time (Section 2(1)(a)(ii) of the Act)

Essentially, in order to be sure the will is drafted one hundred percent correctly, the will should be signed in the presence of two competent witnesses.

c)              Such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person (Section 2(1)(a)(iii) of the Act)

Again this subsection contains a couple of elements:

• i) The witnesses should be the same witnesses that attested (witnessed) the testator’s signature.
• ii)  They should sign the will on the last page thereof.
• iii)  This should be done in the presence of the testator.

d)             If the will consists of more than one page, each page other than the page on which it ends, is also signed by the testator or by such other person anywhere on the page (Section 2(1)(a)(iv) of the Act)

It is common for wills to consist of several pages.  We have already dealt with the requirement of the testator signing the will at the end thereof.  However, the testator should also sign each and every page of the will.

We further recommend, for purposes of good practice, that the witnesses also sign each page of the will.

Your will will be presumed valid in the event that the above requirements are met, and your will should then be complete and regular on the face of it.

However, except for the provisions contained in the Act, there are certain common law provisions affecting the validity of your will. These are, in short –

• The testator should have the prescribed legal capacity, meaning that he should be at least 16 years of age and of sound mind.
• The witnesses should have the prescribed legal capacity, meaning that they should be at least 14 years of age and be of sound mind.
• The testator should have the necessary animus testandi, meaning that he should realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death.
• The testator should not execute the will as a result of fraud, duress or undue influence, and should therefor act voluntarily.

Should someone argue that your will is invalid, the onus of proving that the will indeed is invalid, rests on the person making the allegation.

Although this set of requirements seems fairly uncomplicated, the subject of the validity of wills is far from straightforward, and the list of families regretting that deceased relatives did not take the necessary care when drafting their wills, is endless.

We at Aucamp Scholtz Lubbe have the necessary expertise and experience regarding the drafting and validity of wills.  Should you require any assistance with drafting or reviewing your will, don’t hesitate to contact your responsible director, or Pieter Aucamp (pieter@asl.co.za).