Author: Shelley Orgill
What is a will and why is it important?
The formalities of a valid will. A will refers to a legal document that outlines the distribution of your assets and the care of minor children in the event of your death. In the event that you die without a will or die without a valid will, the distribution of your assets will be governed by the laws of intestate succession. In this instance, your true wishes may not take fruition. Additionally, those you have left behind will be left with the task of spending time and possibly money, to resolve your affairs. It is important to bear in mind that a will must be executed in accordance with the Wills Act 7 of 1953 (“the Wills Act”) in order to be valid.
The Wills Act 7 of 1953
The Wills Act sets outs the requirements for a valid will and must be complied with for all wills signed on or after 1 January 1954. Failure to adhere to these formalities would render a will invalid.
Certain invalidities of a will may be condoned by way of a court order in terms of section 2(3) of the Wills Act. However, non-compliance with the formalities of a will calls for intervention by the High Court which must be convinced that the document in question was intended by the deceased to be his/her will. The costs and time associated with this type of application as well as the probability of success are factors that the deceased’s family should consider when they wish to approach the court.
What are the formalities for a valid will?
According to section 2 (1) of the Wills Act, the formalities of a valid will are:
- The testator must have capacity to make a will
- The will must be in writing
- The will must be signed at the end thereof by the testator. If the will consists of more than one page, then each page must be signed by the testator and two witnesses.
- The signature of the testator must be made in the presence of two or more competent witnesses, which witnesses must also sign the will at the same time as the testator.
There are other formalities for a valid will found in our case law and therefore, it is advisable to instruct an attorney who is acquainted with the legal requirements for a valid will, to assist you with this important task.
Who has capacity to make a will?
According to section 4 of the Wills Act, any person of or over the age of 16 years old may make a will, as long as such persons are capable of appreciating the nature and effect of their actions. For example, a person who suffers from Alzheimers does not have the legal or mental capacity to sign a will.
Where must the testator sign the Will and in what form may he/she sign?
The testator is required to sign at the end of the will, in the presence of two or more competent witnesses who are all present at the same time. Should a will consist of more than one page, the testator may sign anywhere on each page except the last page which must be signed at the end.
The testator may sign a will in the form of signing, an initial or by using a mark. It should be borne in mind that consistency in the signature used must prevail throughout the will.
Should the testator sign the will by using a mark, e.g., by making a cross, a Commissioner of Oaths must be present when the testator makes the mark. The Commissioner of Oaths must satisfy himself/herself as to the identity of the testator and that the will so signed is the will of the testator. The Commissioner of Oaths is required to sign each page of the will and attach his/ her certificate, in terms of section 2(1)(a)(v) of the Wills Act.
Who may be a witness?
According to section 2 (1)(a)(ii) of the Wills Act, a witness must be competent. A competent witness is any individual who is 14 years old or older. The witnesses are required to be present when the testator signs the will. The witnesses must sign each page and in Cape Town, the Master requires the witnesses to print their full names under their signatures.
Should you require any assistance with your estate planning, drafting of your will or the administration of deceased person’s estate, contact us at Velile Tinto Cape Incorporated, where our team of experts will assist.