A Last will and Testament is one of the most important documents that a person executes during his lifetime. It is therefore of utmost importance that there is a strict compliance with the formalities of a will in terms of the WILLS ACT, in order that the document is considered valid upon death.
FORMALITIES FOR A VALID WILL
- The will must be in writing;
- The will must be signed at the end by the testator or if not by the testator, by some other person on the direction of the testator and in the presence of the testator;
- The testators signature must be made by him, in the presence of two competent witnesses (a person who is of the age of 14 or older and who is competent to give evidence in a court of law), present at the same time;
- If the signature is made by some other person other than the testator and on the direction of the testator, such person’s signature must be witnessed by two competent witnesses who are also present at the same time;
- The witnesses must sign the will (in terms of developments in law, the witnesses need only sign the last page of the will)
- If the will consists of more than one page, each page is to be signed by the testator or such other person upon the direction of the testator;
- “sign” includes the making of initials ;
- If a will is signed by the making of a mark, by the testator or by some other person upon the direction of the testator, then a Commissioner of Oaths will have to certify that he is satisfied as to the identity of the Testator and that the will is indeed the will of the testator;
In the above mentioned circumstance, each page of the will has to also be signed by the Commissioner of Oaths, with the exception of the page upon which the Certificate of the Commissioner appears.
In the event of non-compliance with the formalities as listed herein above, the High Court, may direct that the Master of the High Court accepts the document drafted and executed by the testator who has since died, as the Will of that person, provided that the Court is satisfied that the document was intended to be the will of such person.
Currently our courts adopt the spirit of validating rather than invalidating a will, placing far greater emphasis on the intention of the testator rather than actual compliance with formalities for a valid will.
In terms of Section 2(3) of the Wills Act, the High Court may order the Master of the High Court to accept a document which has been drafted and executed by the testator and which does not comply with the strict compliance of the formalities in terms of the Wills Act, to be the will of the testator, provided that such document so drafted and executed reflects the true intention of the testator who has since died.
The above also applies to any amendments to a will.
AMENDMENTS TO A WILL
An amendment to a will refers to the “addition”, “deletion”,”alteration” or “interlineation”.
FORMALITIES FOR AMENDING A WILL
- The amendment must be identified by the signature of the testator
- If the signature is made by a person other than the testator, and acknowledged by the testator, such signature must be made in the presence of two competent witnesses who are present at the same time;
- Such amendment must also then be identified by the signatures of the two witnesses, which signatures must be made in the presence of the testator and each other.
- If the amendment is made by the making of a mark or initial of the testator, then a Commissioner of Oaths is required to certify that he has satisfied himself as to the identity of the testator and that the amendment was made at the request of the testator.
CAPACITY TO EXECUTE A WILL
In terms of the Wills Act any person who is above the age of 16 may execute a will, provided that s/he is capable of appreciating the act. If it is alleged that the testator was mentally incapacitated at the time of making the will, then the onus of proving such mental incapacity rests on the person making such allegation.
THE EFFECT OF DIVORCE ON A WILL
If a person dies after 3 months from the date of the dissolution of marriage and such person failed to amend his/ her will , any bequest made to the ex-spouse shall be deemed to be temporarily revoked unless it appears from the will that the testator intended to benefit his/ her ex-spouse despite the termination/ dissolution of marriage.
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