Requirements for a Valid Will

The requirements for a valid will are set out in Section 2 of the Wills Act 7 of 1953

In this section it is stated that no will executed prior to 1953 will be valid unless:

1. The testator, the person who’s Will is being prepared, signs the Will at the end of the Will as well as at the end of each page of the Will should the Will be longer than one page;

2. Should the testator not be able to sign the Will themselves they may appoint someone else to sign the Will on the testator’s behalf but under the direction of the testator;

3. The will must be signed in the presence of two witnesses whom must also sign the will in the presence of the testator or in the presence of the testator as well as in the presence of a person nominated by the testator to sign the Will on the testator’s behalf;

4. If the Will is signed by the testator by the making of a mark or, a person is nominated to sign the Will on the behalf of the testator, then it will be required that a Commissioner of Oaths is present during the signing of the Will as such and further that the Commissioner of Oaths must certify the Will and state that the Commissioner has satisfied himself to the identity of the Testator and further that the Will so signed is the Will of the Testator;

5. Should any amendment be made to the Will after the signing thereof, it would need to comply with points 1 – 4 as stated above.

6. It must also be noted that the testator must be 16 years or older to make a Will and further must be mentally capable of understanding the meaning of creating a Will.

7. It should further be noted that any witnesses to the Will must be 14 years or older and competent to give evidence in court if needs be.

Should a Will or an Amendment to a Will not comply with any of the requirements as stated above or should it have been drafted on the instructions of the testator but not yet signed, it is possible to approach a court of law to have the Will or amendment thereof declared the Will of the testator and such court order shall order the Master to accept the Will or amendment thereof as the Will of the Testator.

It is very important to note that the following persons as well as the spouses of these persons are not entitled to receive any benefit from a Will:

· any witnesses to a Will,

· the person nominated to sign the Will on behalf of the testator,

· the Commissioner of Oaths on a Will,

· any person whom drafts the Will or a part of the Will in their own handwriting.

The benefits of a Will include being the executor of the estate, a trustee and or guardian in terms of the Will. Should a witness have signed and is due a benefit, they can still receive a benefit but it will have to be dealt with by way of a court order and there are a few further exceptions but it is rather recommended to simply obtain two independent witnesses which witnesses nor their spouses will be receiving any benefit in terms of the Will.

Should you be unsure of whether or not your Will is valid as per the above requirements, you are always welcome to message us or send a copy of the Will and we will double check it for you to ensure it is compliant.

The HFS Consulting and Tax Angel Team