It is important to draft a will as it provides security and ease of mind for relatives upon the death of the testator. By drafting a will, the testator controls how his/her estate is to be administered after his/her death. It is important to note that not all drafted wills are valid as there are certain requirements that needs to be met as set out in Section 2 (1) (a) of The Wills Act 7 of 1953. This article will attempt to simplify the rules as set out in the aforementioned Act by defining what a will is; the three ways in which succession may take place, what are the rules of the Act, what is meant by certain terminology used in the Act, who has the capacity to draft a will as well as witnessing a will.
A will or testament is a formal document in which a person, called a testator or testatrix in the event of a female, stipulates what must happen to their estate upon their death and how it should be distributed. An estate of a testator/testatrix comprises out of all the assets, whether movable, immovable, corporeal or incorporeal as well as debts that the testator/testatrix had at the time of his/her death.
There are three ways in which succession may take place namely; testamentary succession that is, if a valid will is present upon death; intestate succession that is, in the absence of a valid will and lastly; in accordance of a contract or an agreement such as an antenuptial contract. This article however will only address testamentary succession.
Section 2 (1)(a) of the Wills Act 7 of 1953, sets out the basic formalities for execution of a valid will which is as follows:
- Section 2 (1)(a)(i)
The will must be signed at the end thereof by the testator/testatrix, or someone else who acts in the presence and under the direction of the testator/testatrix. This person is known as an amanuensis.
- Section 2 (1)(a)(ii)
The signature of either the testator/testatrix or amanuensis must be made in the presence of two or more competent witnesses that are present at the same time.
- Section 2 (1)(a)(iii)
The witnesses that attest and sign the will must do so in the presence of the testator/testatrix, amanuensis and of each other.
- Section 2 (1)(a)(iv)
If the will consists out of multiple pages, each page except the last page of the will must be signed by the testator/testatrix or amanuensis anywhere on the page.
- Section 2 (1)(a)(v)
If the will is signed by the testator/testatrix or amanuensis by way of a mark, a commissioner of oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the signed will is that of the testator/testatrix and that each page except the last page is signed on the page by the commissioner. Provided that
§ (aa) The will is signed in the presence of the commissioner of oaths in terms of sub- paragraphs (i), (iii) and (iv) and that the certificate concerned is made as soon as possible after the will has been signed.
§ (bb) in the event that the testator/testatrix dies after the will has been signed, but before the commissioner of oaths has made the certificate concerned, the commissioner shall as soon as possible thereafter complete his/her certificate.
Further clarification in terms of the terminology used in the abovementioned section:
- The Wills Act does not specifically require that a will must be a written document, however, the requirement implies that “the will must be signed by the testator/testatrix anywhere on the page”, therefore, it is impossible to make an oral will, a will in the form of a video or DVD, or even saved in electronic format as a computer file because none of these comply with the signature requirement.
- In terms of the meaning of “sign”, “signature” and concept of a mark. Prior to 1 October 1992, in the case of a testator/testatrix “sign” included the making of a mark, however, it excludes the making of a mark in the case of a witness. In the Appellate Division case of Harpur v Govindamall, the court ruled that the initials of the testator constituted a form of a mark, but, a witness’s signature by way of initials invalidated the will. The Parliament stepped in after the judgement was made and stated that the definition of “sign” includes the making of initials and only in the case of a testator/testatrix the making of a mark.
- In terms of where the testator/testatrix must sign, the Wills Act states that the testator/testatrix must sign at the end of the will, which raised the question as to where the will would end.
- In Kidwell v The Master the Court had to consider what the effects of a nine centimetre gap between the last paragraph and the testator’s signature, as well as, a thirteen centimetre gap between the second witness’s signature and that of the testator’s signature will have on the validity of the will.
The Master refused to accept the will because it was, in his opinion, not signed at the end thereof as required by the Wills Act.
The Court held that the will was invalid.
There is no clear explanation in legislation as to what is meant by “the end thereof”, however, it has been held that a will ends at the end of the last paragraph of the will.
Who is capable of drafting a will?
Section 4 of the Wills Act states that every person who is of the age of sixteen (16) years or more may draft a will, unless at the time of drafting the will he/she was mentally incapable of understanding the nature and effect of his/her action.
Who is seen as a competent witness to attest and sign a will?
The Wills Act defines a competent witness as any person of the age of fourteen (14) years or over who at the time of witnessing the will is not incompetent to give evidence in a court of law.
Anyone of the age of 16 or older, and who is capable to understand the consequences of his/her act, may draft a will. However, the formal validity of the will depends on whether the formalities as set out above have been complied with. It is recommended that people wishing to draft a will, do so with the help of lawyers, banks, chartered accountants, insurance companies and trust companies.
(By André-Johann Kleinhans, internship through Pearson Institute of Higher Education)