In order for a Will to be valid, it needs to fulfil all of the statutory requirements contained in section 2(1)(a) of the Wills Act 7 of 1953. Our law only recognises a Will that complies with these requirements.
The document must be signed by the testator. If the Will consists of a single page, it must be signed at the end of that page. If the Will consists of more than one page, each page must also be signed by the testator.
Although not specifically listed as a requirement in the Act, every Will must be in writing. This is derived from the definition of a Will and the reference to a “signed document” in the Act. In reality, a written Will includes not only handwritten documents, but also typed or word-processed documents. An oral Will can never be acceptable, nor will a video recording
The basic formalities required for the execution of a valid Will are as follows:
1. The document must be signed by the testator. If the Will consists of a single page, it must be signed at the end of that page. If the Will consists of more than one page, each page must also be signed by the testator.
It is important to note that recent developments have brought about certain relaxations in the execution of Wills. One of which is that the definition of “signed” is not limited to refer only to a full signature, but also includes the testator’s initials.
In the event that the testator is incapable of physically signing a Will because of an impediment or frailty, the Act provides for that person to direct someone else to sign the Will on his behalf.
Similarly, where a testator is illiterate or frail, he may sign a Will by making a mark or impressing a fingerprint. Under these circumstances, a certificate must be affixed to the Will which follows strict requirements set out in the Act.
2. The testator must sign his Will in the presence of two or more competent witnesses, who must be present at the same time.
The witnesses must also sign the Will, albeit in their case, they need only to sign at the end of the document and it is not a formal requirement that they sign on each page if the Will consists of more than one page. However, it is a requirement that the witnesses sign in the presence of each other as well as the testator For best practice, it is recommended that witnesses sign each page, as well as at the end of the document. We, therefore, advise our clients to ensure that all parties sign in full on each page.
Any person over the age of 14 years and who is competent to give evidence in a court of law, may act as a witness. It is not a requirement for the witness to read the document or even know that it is a Will, seeing as his function is simply to witness the signature of the testator.
Anyone who writes out a Will or who witnesses a Will is disqualified from receiving any benefit from that Will. Therefore, when selecting witnesses, it is important to select witnesses who are not beneficiaries or potential beneficiaries in your Will.
By the same token, anyone who witnesses a Will cannot be appointed as an executor.
3. It is not necessary to have an attestation clause under South African law, nor is it a requirement to date a Will in order for it to be valid.
However, it is important to date a Will because it makes it easier to determine the sequence if more than one valid Will is left behind. This enables one to ascertain whether a document is in fact the Last Will and Testament of the testator or whether the document has since been revoked.
Many a Will has failed and been declared invalid for lack of compliance with the formalities, frustrating the testator’s intentions and causing hardship to disappointed beneficiaries.
If you are uncertain as to whether your Will complies withal of the statutory requirements, or if you wish to draft or update your Will, feel free to contact our offices to arrange a consultation and we will gladly assist you in ensuring that your Will is drafted in accordance with the Act.