Requirements for a valid Will

19 Sep 2019 8:28 am by John de Villiers

Requirements for the execution of a valid will

Before discussing the requirements of a valid will bear in mind that only someone who is sixteen years old or more and mentally capable of appreciating the nature and effect of his act at the time of making the will, is competent to do so (Section 4 of the Wills Act, 7 of 1953).  While a witness needs to be fourteen years old or more and competent to give evidence in a court of law (Section 1(i)).

The Act prescribes a number of necessary formalities in Section 2(1) for a will to be valid when it is executed (signed and witnessed). They are discussed in LAWSA1 as follows:

262 Statutory wills: prescribed formalities after 1 October 1992:

No will executed on or after 1 January 1954 of which the testator died after 1 October 1992 is valid unless the following formalities are complied with:

(a) The will must be signed at the end thereof by the testator or by another person in his or her presence and by his or her direction.

(b) The signature must be made by the testator or by the other person who signs in his or her presence and by his or her direction, or must be acknowledged by the testator and such other person in the presence of two or more competent witnesses present at the same time.

(c) The witnesses must attest and sign the will in the presence of the testator, each other and, when applicable, the person who signed the will in the testator's presence and by his or her direction.

(d) If the will consists of more than one page, each page other than the page on which it ends must also be signed by the testator or by the person who signed on behalf of the testator anywhere on the page.

(e) If a 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 has to certify that he or she has satisfied him­ or herself 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 or her certificate appears, has to be signed anywhere on the page by the commissioner.

The following points and best practices, although not affecting the validity of will per se should be remembered when it is executed:

  1. Wills should be dated to avoid confusion in case another will is found.
  2. Witnesses cannot benefit under a will.
  3. Witnesses cannot be nominated as an executor, administrator, trustee or guardian and if they are, the nomination will be void.
  4. Witnesses should sign/initial every page.
  5. The will should be clear and readable, whether printed or handwritten.
  6. Signatures should be as close to the last line of every page.
  7. Pages should be numbered.
  8. Law of South Africa: Wills and Succession, Administration of Deceased Estates and Trusts (Volume 31 - Second Edition) – Paragraph 262