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WHAT CONSTITUTES A VALID WILL
03 June 2019  | Chanré Wes
 

In terms of South African Law, a person may make a will which directs or control the way in which his or her assets should be distributed upon their death. The Wills Act 7 of 1953 is the statute that regulates the process of wills and other related topics. In essence, section 2 of the said Act sets out the requirements and formalities to be complied with when making a valid will.

In legal jargon a will is defined as a 'written statement, usually signed, made by an individual, which directs the distribution of their property when they die'. In simple English on the other hand it is a document that expresses the wishes of the individual (testator) as to how their property is to be distributed at death. The testator has absolute freedom as to what should be included in their will, how their estate should be distributed and whom they bequeath their assets to.

Before we discuss the requirements of a valid will, let's first look at who has the capacity to make a will. In South African law any person age 16 (sixteen) and older has the capacity to make a will provided that he is capable of understanding the nature and effect thereof.[1]

The Wills Act[2], as amended, provides the statutory requirements and formalities for a valid will. The requirements as set out in section 2 of the Wills Act are peremptory. Should either one of these requirements not be met, the will shall be rendered invalid.

The requirements as per section 2 of the Wills Act are as follows:[3]

  • the Will shall be reduced to writing;
  • the Will is to be signed at the end of it by the testator, or by a third party in the presence of the testator and in accordance with his instruction;
  • the Will shall be signed in the presence of two competent witnesses who can attest to the signature of the testator, or those of the one signing on his behalf, under his direction;
  • the two witnesses must sign anywhere on the last page of the Will, in the presence of the testator, or in those of the one who signed the will on the testator's behalf;
  • the testator must initial each page of the will, except on the page that he had signed with his signature;
  • in the event that the testator cannot affix his signature, he can also sign the will by making a mark at the place dedicated for his signature;
  • if the testator signs his will by way of a mark, a Commissioner of Oaths must certify that he has satisfied himself with the identity of the testator and that the will, as signed, is that of the testator.
  • the will must be signed and witnessed in the presence of the Commissioner of Oaths, who will soon after the will has been executed, certify the will.

As aforementioned, the requirements of a valid will is peremptory, therefore it is of utmost importance to ensure that your will meets the requirements and formalities for it to be valid in a court of law.

 

Reference List:

  • The Wills Act 7 of 1953
  • Corbett, Hofmeyer and Kahn The Law of Succession in South Africa, 2nd Edition.

 

 



[1] Section 4 of the Wills Act 7 of 1953.

[2] Wills Act 7 of 1953.

[3] Section 2 of the Wills Act 7 of 1953.

 
 
 
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Tags: Will