The Importance of a Will

It can be said that it is the most important document you sign in your lifetime.

In the Republic of South Africa, the validity of a Will is governed by The Wills Act 7 of 1953.

In terms of section 2(1)(a) of the Wills Act, the following items need to be adhered to, in order for a Will to be Valid:

The Testator (person who attests the Will), has to be over the age of 16 and has to be compos mentis (of sound mind);
The Last page of the Will, has to be signed by the Testator, or by some other person in his presence or by his direction;

Such signature is made by the Testator or some other person or is acknowledged by the Testator, and if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and;

Such witnesses attest and sign the Will in the presence of the Testator and of each other, and if the Will is signed by such other person in the presence of such other person; and

If the Will consists of more than one page, each page other than the page in which it ends, is also so signed by the Testator or by such other person anywhere on the page.;

The witnesses have to be of 14 years or older;

If the Will is signed by the Testator by the making of a mark or by some other person in the presence and by the direction of the Testator, a Commissioner of Oaths certifies that he has satisfied himself as to the identity of the Testator and that the Will so signed is the Will of the Testator, and each page of the Will, excluding the page on which his certificate appears, Is also signed , anywhere on the page, by the Commissioner of Oaths who so certifies.;
The Commissioner of Oaths must ensure that the requisite Certificate in terms of (Section 2(1)(a)(v) and Schedule 1) is attached to the Will;

Section 2(3) of the Wills Act, makes provision for situations where a Testator drafts an amended document or executes a document and subsequently dies, the High Court must be satisfied that the Testator intended the document to be his Last Will and Testament or an amendment to his Will.

If the High Court is satisfied that the document is indeed the Testators Last Will or an amendment to his Will, the Master will have to the accept the document, even though it may not fulfil the requirements stipulated for a valid Will, as listed in section 2(1)(a) of the Wills Act.

When a person dies without a Will and or a Valid Will, the distribution of his estate is governed by the Intestate Succession Act 81 of 1987. Which means that the Act stipulates how a person’s estate may be distributed and may be contrary to the person’s ultimate intentions on death.

There are also instances where a person can die partially testate and partially intestate. This occurs when the Will does not clearly direct the deceased’s intentions and or certain clauses of the Will may be deemed to be invalid for various reason.

Its is therefore vitally important that regardless of your asset worth, it is imperative that you have a Will drafted by an attorney who is familiar with the Wills Act, the Intestate Succession Act as well as the Administration of Estates Act 66 of 1965.

Contributor: CANDICE WILLIAMS (Associate) (Fiduciary Department) (Umhlanga Office)

E-Mail: candicew@tmg.co.za

Tel: 031 566 2207