Your Will and the requirements to ensure a valid execution

One of the relatively simple, but cardinal compliance requirements relate to the execution of a Will – in simple terms - the signing of the document after it has been drafted. The Wills Act 7 of 1953 as amended by The Law of Succession Act 43 of 1992 deal with these requirements.
The following are formalities required for the execution of a valid Will: 

To elaborate on this requirement, ‘sign’ includes initials as well as the making of a mark. It is important to note that there are additional formalities required when signing by way of a mark, in that a validation certificate by a commissioner of oaths which is to be set up in a specific manner per the Act, would be required in this instance. When another person signs on behalf of the Testator there are also specific additional requirements regulating the process, which are specified in the Act. The intention of the testator at the point of signing is an important principle in determining validity.

‘At the end’ thereof generally means as close to the concluding words as is reasonably possible and that, where the testator signature was more than thirteen centimeters below the signature of the witnesses and seventeen centimeters or more below the attestation clause, the Will was invalidly executed. It is however, generally within the power of the court to make a ruling in this regard, but it would necessitate a court application.

2) The Will must be signed by the Testator, by the other person, or must be acknowledged by the Testator and, if made by the other person, also by him, in the presence of two or more competent witnesses present at the same time.

This means that the Testator or person signing on his behalf per 1 above, must either sign in the presence of the witnesses, or if the Will has been previously signed, the testator, if he has signed himself, must acknowledge the signature in the presence of the witnesses. If the Will is signed before a commissioner of oaths per 1 above, note that the commissioner cannot act as a witness.

Basically, the above means that all the parties to the due execution of the Will must at the same time of witnessing the Will, see each witness sign.

Whilst there is no direct instruction as to the position of the witness signatures, it would be the safe course of business for them to sign at the end of the Will at the attestation clause.

The witnesses need not have read the Will, nor do they need to know what they are witnessing and they cannot sign by way of a mark, but may do so by way of initials.

3) If the Will consists of more than one page, each page must be signed by the testator or the person who signed for him.

Whilst the testator or person signing for him need to sign every page (other than the page on which the Will ends, this signing can be done anywhere on the page) the witnesses do not have to sign each and every page and thus they only have to attest the Will as indicated at 2 above.

Failure of the testator or the person who signs for him to sign each page of the Will, will ordinarily, not only invalidate the Will, but in fact the entire document. The courts have however, in certain instances declared such a document where the relevant pages were correctly executed, as valid where those pages are not essential to other invalid pages or vice versa. There may also be further exceptions to this requirement as it would generally be within the power of the court to make a ruling in this regard.

4) Dating

The dating of the Will is not essential to its validity, but it is important to have this clearly reflected where there has been prior Wills to establish which Will is the later one.

5) Other basic requirements to be aware of as it relates to Wills would be as follows:-

1. Joint Wills are acceptable and must be signed per the normal execution requirements by both testators, but no additional witnesses are required if the testators sign at the same time – thus two witnesses for the two testators would be sufficient. This type of Will is mostly utilized by parties married in community of property. Revocation of any section of the document applicable to that specific testator can occur at any time. The joint Will, will also operate as the Will of the surviving testator on death, unless previously revoked by him or her.
2. A Codicil is an amendment of an existing Will. Generally, the same execution requirements applicable to a Will, would apply to a Codicil.
3. Who May Make a Will – Any person that is sixteen years of age or older may make a Will unless at the time of making the Will that testator is mentally incapable of understanding the nature and effect of this act. The burden of proof that he or she was mentally incapable at that time will rest upon the person alleging the incapacity.
4. Who May Witness a Will – Any witness to a Will must be competent to act as such with a competent witness being defined as a person of the age of fourteen years or older who at the time of witnessing the Will is not incompetent of giving evidence in a court of law. It is extremely important to note that, in the event of a beneficiary listed in the Will, also having witnessed the document, the Will itself will not be invalid, but the bequest or award to that beneficiary will be void.
5. Who May Not Benefit Under a Will - The Act provides that:

• Any person who attests and signs the Will as a witness; or
• Any person who signs a Will in the presence and by direction of the Testator; or
• Any person who writes out the Will or any part thereof in his own handwriting; and
• The person who is the spouse of such person at the time of the execution of the Will;

Shall be disqualified from receiving any benefit from the Will, save for the exceptions to the above, which are as follows:-

1. If a court of law declares such person or spouse competent to receive a benefit from a Will should the court be satisfied that the person or spouse of the person did not defraud or unduly influence the testator in the execution of the Will;
2. If the person or his or her spouse would be entitled to inherit in terms of the Intestate Succession Act 81 of 1987, if the testator had died intestate, provided that the value of the benefit to which the person or his or her spouse is entitled, does not exceed the value of the share they would have been entitled to if inheriting in terms of the law of intestate succession;
3. If the Will was attested and signed by at least two other competent witnesses who will not receive from or benefit from that Will.

It is extremely important to note that a ‘benefit’ shall include the nomination of a person as executor, trustee or guardian.
Thus, utilizing witnesses not mentioned anywhere in the Will, would be the safest option to ensure possible disqualification does not apply.

It is also recommended, out of a risk point of view, that the witnesses as well as the testator sign in full at the bottom of each and every page of the Will including at the end thereof at the attestation clause.

In conclusion it is quite clear that, whilst the drafting and content of the Will is essential to ensure an efficient estate administration when the time comes, the execution of the document is equally important to ensure that the document is in fact valid at the time that it becomes applicable.

01/09/2022