In South Africa, a person can leave his / her assets to whoever he /she likes. This is called “freedom of testation“.

For your will to be valid it will need to be drawn up in the correct way to comply with the formalities provided for in our law.

The following are some of the more important requirements of the Wills Act 7 of 1953:

Anyone 16 years or older can make a will, provided that the person is mentally capable of appreciating the effect of what he or she is doing. The will must be in writing and must be signed by the testator or testatrix or by both in case of a joint will.

The will must be signed in the presence of two or more competent witnesses, who must be 14 years or older. The witnesses must sign the will in the presence of the testator or testatrix and of each other. A beneficiary, trustees and Executors or their spouse can’t be witnesses to a will from which they benefit.

Each page of the will must be signed by the testator/testatrix and witnesses.

Although it is not necessary to date a will for it to be valid, dating it is important to determine if it is the last will.

Oral wills and family arrangements are not recognised in our law and are not enforceable and can merely be used as guideline regarding the testator’s wishes.

Handwritten wills

In the case of a handwritten will in full or in part, it is required to be in the testator’s own handwriting. In the event that an heir or nominated executor writes the will, it will trigger intestacy and will result in an heir or executor being disqualified form inheriting or being appointed. In a case where an heir is disqualified from inheriting as a result of handwriting the testator’s will, such a beneficiary will only be able to inherit as much as they would have been entitled to in terms of intestate succession.

Must I amend my will after divorce?

If a person dies within 3 months after his or her marriage was dissolved by divorce and the deceased drafted a will before the marriage was dissolved, the ex-spouse will not inherit unless it is clear that the deceased intended to allocate a benefit to his/her ex-spouse.

What is a codicil?

A codicil is an annexure to an existing will, which is made to supplement or amend an existing will. The codicil must comply with the same requirements for a valid will.

What does an Executor do and who can I appoint as Executor?

The Executor is the person who’ll make sure that your assets are divided to your wishes according to your will. The Executor also evaluates the estate and its debts. The Executor can be your spouse, child, parent, family friend or an attorney.

The person or company so nominated will have to apply to the Master of the High Court after your death to be formally appointed by the Master to act in this capacity. If the person you choose is not a professional estate administrator then the Master will insist that the person concerned utilise the services of a professional estate administrator to attend to the work which needs to be done.

Where do I keep my will?

It is important that your original will is kept safe with a responsible person or institution, as a copy or certified copy of a will is not considered a valid will, which will result in your estate being wound up according to intestate succession.

What happens if I die without a will?

If you die without leaving a valid will, the assets in your estate will be divided according to the provisions set out by law in terms of the Intestate Succession Act. These provisions are generally fair and ensure your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationship, which may not be what you want.

For more information on the drafting of Wills, please contact our Elke Herbst at e.herbst@bissets.com or call our offices on 021 441 9800.

 

Elke Herbst | Associate

E: e.herbst@bissets.com

Areas of Expertise: Wills | Deceased Estates | Curatorships

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When executing a will, it is important to ensure that you have signed it correctly and in accordance with the Wills Act 7 of 1953 (the “Wills Act”).

The formalities for the valid execution of a will are set out in the Wills Act. Portion of Section 2 (1) of the Wills Act, Act 7 of 1953, reads:

No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… 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…”.

Therefore, in order for a will to be validly executed, one of the requirements is that it has to be signed by the testator in the presence of two competent witnesses (who will not benefit from the will in any way, therefore the persons signing as witnesses should not be heirs or an executor of the will). If this provision is not complied with, the will may be invalid.

In Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ) the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will.  Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgment of the High Court once again emphasizes the importance of complying with the Wills Act. If you have not executed your will correctly, it is essential to arrange for a preferably new will to be re-executed as soon as possible. It is advisable to seek legal advice when preparing your will to ensure that it is correctly executed and therefore a valid will.

 

Roald Besselaar | Partner

E: r.besselaar@bissets.com

Areas of Expertise: Conveyancing, Estate Law, Wills, Trusts, Curatorships, Property Law