In South Africa, for a Will to be Valid it needs to adhere to the requirements set out in the Wills Acts 7 of 1953. These requirements are as follows;
The document must be signed by the testator (A testator is the person whose scheme of devolution is contained in the Will. The female version of ‘testator’ is ‘testatrix’).
The Will must be signed at the end of the document (as opposed to the bottom of the page). This simple task, which is often a common mistake made by an inexperienced testator, has led to many Wills being declared invalid.
If the Will consists of a single page, it must be signed at the end of that page. If the Will consists of more than one page, each page must also be signed by the testator.
Recent amendments to the Act has lead to certain relaxations in the execution of Wills, one of which was that the definition of the term ‘signed’ is not limited to refer only to a full signature, but also includes the testator’s initials.
The testator must sign his Will (or confirm his signature) in the presence of two or more competent witnesses, who must be present at the same time.
The witnesses must also sign the Will, although, in their case, they need only to sign at the end of the document and not on each page (if the document consists of more than one page).
The witnesses must sign in the presence of each other as well as the testator.
For clarity, it is recommended that the witnesses sign each page as well as at the end of the document. It is advised that all parties sign in full on each page.
Though not a requirement, it may be beneficial to place a date on your Will. This can be helpful in case you leave behind more than one Will and it will determine which one was your last and final Will.
The Act determines that anyone over the age of 16 years at the time he witnesses the Will and who is competent to give evidence in a court of law, may act as a witness. The witness does not have to read the document or know what information the Will contains, as the primary function is to witness the signature of the testator.
It is important to select witnesses who are not beneficiaries or potential beneficiaries of the Will. This is due to the rule that anyone who writes out a Will or who witnesses a Will is disqualified from receiving any benefit from that Will. Even the spouse of that person is disqualified.
Many a Will has failed (and been declared invalid) for lack of compliance with the formalities, frustrating the testator’s intentions and causing hardship to disappointed beneficiaries. Given its importance, it seems foolhardy to risk that the document might be declared invalid by failing to ensure that its execution is supervised by a suitably qualified person with the know-how to draft a valid will.
It is also important that you have your Will reviewed by a testamentary specialist, otherwise it could result in options that are specific to your Estate that can be overlooked or legalities that are not taken into consideration. This could result in your Will being regarded as invalid which can turn into a costly legal exercise to rectify.