Your will is one of the most, if not the most important document you will ever sign. It’s alarming that less than 15% of South Africans pass away with a valid will in place. The laws governing the validity of wills in South Africa are very strict and often a will is not accepted by the Master of the High Court because of a minor formality that has not been met. We will very briefly discuss the formalities as set out in the wills act as well as pitfalls we have come across in practice over the years.

Requirements of a Valid Will in South Africa

The Wills Act of 1953 stipulates formalities required for a valid will, which are briefly as follows:

• The Will must be in writing;
• The Will must be signed at the end by the testator (the person making the will) if the will has more than one page the testator and witnesses must sign on every page;
• Signature of the testator must be made in the presence of two or more competent witnesses;
• The above mentioned witnesses must attest and sign the Will in the presence of the testator and each other;
• Where a testator marks with a mark or where the testator instructs another person to sign on his or her behalf a commissioner of oaths must be present and certify to the identity of the testator and that the document signed is the will of the testator;
• The person making the will must be 16 years or older and not mentally incapacitated.

To take things a step further, the below mentioned provisions may not have the consequences of a will being invalid but may make parts of the will invalid or unenforceable and have unintended consequences.

When signing a will take special care with regard to the following:

• Ensure your witnesses are independent, so in other words, your witnesses cannot be your nominated executor, beneficiaries or their spouses;
• If your will is hand written make sure its written in your own hand, if this is not possible, make sure your will is not written by your nominated executor, beneficiaries or their spouses;
• Any blank spaces on the will larger than 10cm should be struck through and initialled by the testator to avoid any provisions being added to the will by someone else at a later stage, if possible avoid drafting a will with large blank spaces;
• Make sure to date your will, as the most recent will should revoke previous wills, if you do not add a date your previous will may be considered to be your will.

It’s important to mention that beneficiaries under the age of 18 cannot inherit cash, and to ensure that minor beneficiaries inheritance does not go the state (Guardians Fund) you will need to add a testamentary trust to your will where the money can be managed by the trustees till the minors reach the age of 18 years.

The often most important aspect overlooked when it comes to wills is that the Master of the High Court only accepts original wills, if the original will has been lost or misplaced a court order must be brought in the High Court declaring the copy to be deemed an original. This is an expensive and time consuming endeavour, so if you can, sign your will in duplicate so you have a spare original.

Cornell Horn Attorneys - Deceased Estate Administration Attorneys in Cape Town

We at Cornell Horn Attorneys can provide you with a properly drafted will. Contact us at [email protected] or give us a call on 021 891 0505, we will be happy to assist you with putting your affairs in order.