A will is a legal document through which a person, known as a testator or testatrix, expresses their wishes regarding the distribution of their estate after death. The validity of a will is essential to ensure that these wishes are followed and that the estate is administered in accordance with the law.
Why Should You Have a Will?
- Ensure your assets are distributed according to your wishes.
- Nominate guardians for minor children.
- Reduce family conflict and administrative delays.
- Estate planning to avoid unnecessary taxes or costs.
In terms of the Wills Act 7 of 1953, the formalities for executing a will are crucial to ensure its validity and enforceability. The requirements are as follows:
- Anyone who is 16 years or older is competent to execute a will
- A will must be in a written format.
- The signature of the testator must appear at the end of the document.
- Should the will span multiple pages, each page must be signed by the testator.
- The signature of the testator must occur in the presence of at least two competent witnesses.
- The witnesses must also sign the will in the presence of both the testator and each other.
- Should the testator/testatrix sign by way of making a mark (rather than a signature), a commissioner of oaths must be present, and specific certification procedures must be followed.
- Any empty spaces in the will should be removed or crossed out and the testator and witnesses initial these amendments.
Who qualifies to be a competent witness:
- A competent witness is defined as someone over the age of 14 years who is able to give evidence in court.
- Any party mentioned in the will should not act as a witness to the will. According to Section 4A of the Wills Act, a beneficiary that is mentioned in the will who acts as a witness may be disqualified as a beneficiary, although the will itself remains valid.
Consequences of non-compliance
A will not executed in accordance with these formalities is considered invalid. To validate such a will, a court order may be required under section 2(3) of the Wills Act, but this can involve significant costs and delays, affecting the testator’s family during an already challenging time.
Understanding and adhering to these formalities is essential for anyone preparing a will, ensuring that their wishes are honoured and reducing the likelihood of disputes or complications after their passing.
A well-structured will is essential to ensure that your estate is managed according to your wishes and that your loved ones are protected.