A will is a legal document that allows a person to state what they want to happen with their estate once they pass on. The person making a will is known as the testator and their estate includes a person’s belongings, physical and intangible assets, land and real estate, investments, collectibles, and furnishings. While the person who is appointed to administer the estate is known as the executor and a beneficiary is the person who is entitled to inherit. This article discusses the key elements of a will which are; the formalities, capacity, freedom of testation, maintenance and custody, signatures, witnesses, amendments, marriage and safe custody of a will.
FORMALITIES OF A WILL
The Wills Act [Chapter 6:06] is the law governing wills and states that a will includes an oral will, a codicil and any testamentary writing, but does not include a document evidencing an antenuptial contract or other transaction of a contractual nature. A will has no effect until the testator dies and must be consistent with the following formalities;
- A will must be in writing.
- The testator must sign every page of the will as closely as may be to the end of the writing on the page concerned.
- Each signature of the testator made on every page of the will must be witnessed by two or more competent witnesses present at the same time. A competent witness is any person who is of or over the age of sixteen, who is competent to give evidence in a court of law and is physically capable of seeing a testator sign his or her will or acknowledge his or her signature on a will.
- Each competent witness must either sign each page of the will or acknowledge his or her signature on each page of the will in the presence of the testator and the other witnesses.
- The testator must have the capacity to make a will
CAPACITY TO MAKE WILL
Any person who is 16 years and older can write a will unless, at the time of writing the will, they were mentally incapable of appreciating the nature and effect of their actions. If anyone disputes the validity of the will based on the testator being mentally incapable, they have the burden of proving this incapacity.
CAPACITY TO BENEFIT UNDER A WILL
Any person whether born or unborn, natural or juristic and whatever their legal capacity may benefit in terms of a will. However, they is a long list of individuals who lack the capacity to benefit from a will is provided in Section 6 of the Wills Act. These include;
- Witnesses to the will
- Any person who signs the will or any amendment in the will in the testator’s presence and at his direction.
- Any person who, on behalf of the testator or at his direction, personally writes out the will or any part of it that confers a benefit upon him or her.
- Any magistrate, presiding officer of a community court, justice of the peace, commissioner of oaths or designated official who has certified the will or any amendment in the will.
- If the testator was a minor or under a legal disability at the time the will was made, any person who at that time was a guardian of the testator, other than a parent or a curator, trustee or administrator of the testator as the case may be.
- A spouse or a child of a person who has no capacity to benefit under the will also lack capacity.
- Any person who, through fraud, duress or undue influence, has caused the testator to make the will or to insert therein the provision conferring the benefit upon him or her; or prevented or attempted to prevent the testator from altering the will or making a new will.
- Any person who unlawfully destroys or conceals a will made by the testator or a copy of such a will.
- Any person who has unlawfully and intentionally killed the testator or any person who was closely related to the testator.
- Any person who, in some way other than by causing the death of a person, has by his unlawful and intentional act or omission directly caused the benefit to be conferred upon him or her.
CAPACITY TO BE AN EXECUTOR
A testator can legally appoint anyone who is 18 years old or over to be the executor of their estate. This person may be a relative or a friend. However, an executor must be someone who can comprehend what the court asks him to do. Additionally, the person must be someone whom the testator’s family will be able to trust. If a testator pays a lawyer to assist them with drafting a will they may appoint the legal firm as the executor.
FREEDOM OF TESTATION
A testator has the right to appoint the beneficiaries to their estate as they wish and their wishes must be complied with. Once a testator has the capacity to write a will, they have wide discretion to dispose of their property. A will shall not be invalid solely due to the testator disinheriting or omitting any child, parent or relative.
However, Freedom of testation is not absolute as a testator must ensure that when writing their will, they protect their spouse and children. As section 5(3) of the Wills Act states that no provision, disposition or direction made by a testator in his will shall operate to vary or prejudice the rights of their spouse, any person to receive any property, maintenance or benefit from the testator’s estate and any creditor in respect of any debt or liability. Therefore, the testator ensures that the will protects those in their care.
CUSTODY AND MAINTENANCE
A parent who has sole custody or guardianship of a minor may vest their custody or guardianship of the minor child to another person through a will. However, this is only possible where the other spouse cannot assume custody or guardianship in terms of the Guardianship of Minors Act [Chapter 5:08].
A dependant may make an application for an award for maintenance from the net estate of the deceased’s estate. Dependents include; a minor child, surviving spouse or divorced spouse who was being maintained by the deceased.
A will must be signed by the testator. The will is not executed until it is signed and it must be signed before the testator’s signature can be attested by witnesses. The testator must have written in their own hand their surname, last name or name that they are ordinarily known. If a signature is illegible, partly formed or misspelled this does not invalidate it. It is sufficient for a testator to sign his will by making a mark thereon. A mark includes making a cross or to writing or stamping initials. However, the will is not valid unless a Magistrate, Justice of the peace or Commissioner of Oaths before the testator’s death certifies and signs each page of the will.
A competent witness is any person who is of or over the age of sixteen, who is competent to give evidence in a court of law and is physically capable of seeing a testator sign his or her will or acknowledge his or her signature on a will. Witnesses to a will do not need to know the contents of a will. A will remains valid even if competent witnesses who signed it were unaware that the document, they signed was a will. Witnesses to the will must sign in the presence of the testator. If it appears that the testator could not see the witness’s sign the will is void.
If a will is amended before it is signed then the amendment must be identified by the signature, initials or other mark of the testator and the signature or initials of competent witnesses. When amendments are made after the will has been signed then the testator must sign each page where an amendment was made. The testator’s signature must be made by the testator in the presence of two competent witnesses. Each witness must identify the amendment by signing each amended page in the presence of the testator and other witnesses.
A will becomes void when a testator gets married as a marriage contracted after the execution of a will invalidates that will. If a testator gets divorced or an order of annulment is granted, the will remains in force. However, if the testator had appointed their ex-spouse as executor or administrator that provision of the will shall lapse. If the testator intends that even at divorce their spouse remains executor or administrator and benefit from their estate, they must make it clear in the will.
SAFE CUSTODY OF A WILL
If a testator keeps their own, will they must store it with all other important papers so that once they die their family can easily locate the will and lodge it at the Master of High Court offices. If the will is drafted by a lawyer, the testator may leave a copy of the will with the lawyer’s firm. The testator must then inform their family of the lawyer’s name and firm so they can contact the lawyer at the death of the testator if they are unable to locate the original copy. At a cost, the testator may also lodge their will at the Master of High Court office. The testator must inform a trusted family member on where to find their will once they die.
In conclusion, it is important when writing a will that all the key elements that make up a will are observed. This ensures that the contents of the will are adhered to and the validity of the will is not disputed. As a testator, you have freedom when writing your will however ensure that the will protects your spouse and children.
If you are having any challenges with writing your will or are involved in a family dispute related to will. At JPLP we have a qualified lawyer ready to sit down with you today!
- Jamneck J et al The Law of Succession in South Africa Oxford University Press 2009
- Section 8(1)(a) of the Wills Act (Chapter 6:06)
- Section 8(1)(b) of the Wills Act (Chapter 6:06)
- Section 8(1)(c) of the Wills Act (Chapter 6:06)
- Section 7 of the Wills Act (Chapter 6:06
- Section 8(1)(d) of the Wills Acts (Chapter 6:06)
- Section 4(1) of the Wills Act (Chapter 6:06)
- Section 4(1) of the Wills Act (Chapter 6:06)
- Section 4(4) of the Wills Act (Chapter 6:06)
- Section 6 Wills Act
- Section 7 of the Wills Act (Chapter 6:06)
- Section 16(1) of the Wills Act (Chapter 6:06)