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Wills


- Featured article by LAWYERS-ONLINE.CO.ZA

Wills and the requirements for a valid will

A will is a specialized document, which should preferably be drawn up by an expert like an attorney.

All persons of 16 years and over is competent to make a will, unless at the time of making the will he/she is mentally incapable of appreciating the consequence of his/her action.

All persons of 14 years and over are competent to act as a witness to a will and who at the time he/she witnesses a will are not incompetent to give evidence in a court of law.

A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will.

There are some exceptions to this rule. These can be discussed with your attorney in a consult.

The requirements for a valid will are mentioned below: all wills must be in writing - it can be written by hand, typed or printed; the testator/testatrix must sign the will at the end thereof; the signature of the testator/testatrix must be made in the presence of two or more competent witnesses; the witnesses must attest and sign the will in the presence of the testator/testatrix and of each other; and if the will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix anywhere on the page (although the testator / testatrix must sign all the pages of the will it is only the page on which the will ends, that needs to be signed by them at the end of the will).

If you cannot sign your name, you may then ask someone to sign the will on your behalf or you can sign the will by the making of a mark (a thumbprint or the making of a cross).

When the will is signed by someone on your behalf or by the making of a mark the requirements for a valid will are as follows: all wills must be in writing. It can be written by hand, typed or printed; the testator/testatrix must sign the will at the end thereof by the making of a mark, or the will must be signed by some other person in the presence and by the direction of the testator/testatrix; the mark or the signature of the other person signing on behalf of the testator/testatrix must be made in the presence of two or more competent witnesses and a commissioner of oaths; the witnesses must attest and sign the will in the presence of the testator/testatrix and of each other and if the will is signed by the other person, also in the presence of such other person and a commissioner of oaths; if the will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix or by such other person anywhere on the page (although the testator / testatrix must sign all the pages of the will it is only the page on which the will ends, that needs to be signed at the end of the will); a commissioner of oaths must certify that he/she has satisfied himself/herself as to the identity of the testator and that the will so signed is the will of the testator; and the commissioner of oaths must sign his/her certificate and he/she must also sign each other page of the will, anywhere on the page.

A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading.

When amending a will, the same witnesses who signed the original will need not sign it.

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.

This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.

Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

If you die without leaving a will or a valid will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987).

Date: 21st August 2014
Legislation: Wills Act, 7 of 1953
Intestate Succession Act, 81 of 1987

Wills - Legal Information South Africa