WILLS AND WORRIES – THE REQUIREMENTS FOR A VALID WILL

by Sherese Moonsamy
17th Apr 2020

WILLS AND WORRIES – THE REQUIREMENTS FOR A VALID WILL

Amid the spread of the Corona virus in South Africa, the demand for wills has increased significantly. This pandemic has confronted us with the uncertainty of life and the necessity of getting our estates in order. A will ensures that your assets are disposed of according to your wishes after your death – this is referred to as freedom of testation.

Whilst many may consider drafting a will during the lockdown, several challenges in circumstance are presented. For example, you may not be able to print your will in order to sign it or the beneficiaries to your will may be the same people you in isolation with and they therefore cannot sign as witnesses.  Furthermore, electronic signatures are, at present, not considered to be valid for wills. The Master of the High Court will only accept an originally signed will. With the lack of clarity regarding validity of wills during lockdown conditions, it is imperative to familiarize yourself with the requirements to execute a will. Compliance with the formalities circumvents any disputes or frustration of your intention.

The Wills Act 7 of 1953 stipulates that:

  • The testator must be over the age of 16 (sixteen) years
  • The testator must be mentally capable of understanding the consequences of their actions at the time the will is drafted
  • The will must be in writing (typed or handwritten). If the will is handwritten, the person who writes it may not be mentioned as a beneficiary
  • Each page of the will, including the last page at the end, must be signed in full by the testator and the witnesses
  • The will must be signed two competent witness (a person 14 (fourteen) years or older)
  • The testator and the witnesses must sign the will in each other’s presence
  • If the testator signs by making a marking or using a thumb print, a commissioner of oaths must be present and attach a certificate to the will confirming that he/ she is satisfied as to the identity of the testator and that the will is in fact that of the testator
  • The date and place where the will is signed must be reflected on the will

You may revoke your will or alter it via a codicil at any time before your death. If you fail to draft a valid will your estate will be distributed according to the Intestate Succession Act 81 of 1987. These provisions are generally fair, however, the results may not be as intended and therefore drafting a valid and comprehensive will is advised.

Should you have any enquiries please do not hesitate to contact us.

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