Neil Parker Attorneys preparing a will
Is there more to preparing a will than recording your wishes in writing, signing the document and keeping it somewhere safe for future reference?
Yes, in South Africa wills must comply with certain strict formalities, or they may not be valid.
After a death, the deceased’s family members will hand over the deceased’s will to the Master of the High Court, in order for it to be implemented. The Master is entitled, at his/her discretion, to refuse to accept any such document until a court has pronounced upon its validity as a will. If the formalities haven’t all been complied with, the court will order the Master to accept the will if it is satisfied that the document was prepared by the deceased with the intention that it would serve as his or her will.
Taking the document before a court to resolve the question of its validity is a very expensive and time-consuming process, however – and one best avoided at virtually all costs! It is common for a High Court matter to costs hundreds of thousands of rands, and to take a number of years to reach the doors of the court.
The purpose of imposing strict formalities is to reduce fraud where wills are concerned, through for example someone impersonating a testator (the person making the will) or misrepresenting to a person what exactly they are signing.
What follows are the basic requirements to be met to ensure the validity of wills:
1. The testator must be at least sixteen years of age, and must be mentally capable of appreciating the nature and effect of his/her act in making the will. If the testator is intoxicated or extremely unwell at the time, to the point that s/he lacks sufficient understanding of what s/he is doing, then the will is not valid.
2. Wills must be signed by both the testator and the two competent witnesses. A competent witness is a person aged at least fourteen years, and also having sufficient mental capacity.
3. The testator can sign through making a mark (such as an X or a thumb print) but this must be certified by a commissioner of oaths, who states that s/he is satisfied that the testator is who s/he purports to be and that the will is in fact his/her will. Witnesses cannot sign by making a mark.
4. The signatures at the end of wills must appear sufficiently close to the final substantive words of the will. If too large a gap is left, then the signatures and will may be invalid. Even a gap of 17cm has resulted in a will being deemed invalid.
5. The testator and witnesses must sign in each other’s presence and at more or less the same time.
6. If wills are more than one page long, then each page other than the final page must also be signed by the testator. It is not essential for the witnesses to also sign each other page, but it is wise that they should do so anyway.
While the formalities are few and simple, small omissions can have significant consequences. It is wise to sign your will in the presence of someone with the necessary knowledge of the formalities, to ensure that seemingly minor oversights do not cause major problems down the line.