The validity of your Will is paramount to ensuring that your assets are distributed among your heirs in accordance with your wishes. Checking the legal standing of this critical document requires careful attention to detail. Here’s a checklist to determine whether your Will can withstand legal scrutiny.
Were you mentally sound at the time of drafting your will?
To be legally valid, a testator or testatrix must be mentally sound when drafting a Will, meaning they must fully comprehend the consequences of their decisions. If you were under the influence of alcohol, narcotics, or other mind-altering substances at the time, your Will could be challenged. Likewise, if you suffered from a mental illness that impaired your capacity when signing your Will, this could also be grounds for contestation. However, the burden of proof lies with the person making the allegation. Additionally, the law requires that a person drafting a Will must be at least 16 years old.
Did you know? Courts often rely on medical and expert testimony to determine a testator’s mental capacity if a Will is contested. A letter from your doctor confirming your sound mind at the time of signing can serve as additional evidence of validity.
Did anyone influence or pressurise you?
Your Will is a confidential document, and you have the absolute right to distribute your assets as you see fit. You are under no legal obligation to share its contents with anyone, including your spouse. If undue influence or coercion was exerted on you when drafting your Will, the document can be challenged. However, the onus of proving coercion rests on the person making the claim.
Did you know? A sudden, unexplained change in a Will shortly before death can raise red flags and prompt legal challenges. Keeping records of your estate planning discussions can help protect your wishes.
Who typed or wrote out your will?
Most individuals seek professional assistance when drafting their Wills, meaning a third party typically types the document. This is acceptable, provided that the person typing the Will does not stand to benefit from the estate. If you wrote out your Will by hand, ensure your handwriting is legible to avoid confusion. If someone else wrote it for you, confirm that they are not named as a beneficiary in the document.
Did you know? A handwritten Will, also known as a holographic Will, may still be valid if all legal requirements are met. However, handwritten Wills are more prone to disputes due to interpretation issues.
Did you sign your Will in full?
For a Will to be valid, you must sign it in full on the last page. While you can sign anywhere on the page, it is recommended to place your signature at the bottom, as close to the last paragraph as possible. Although not legally required, signing all preceding pages is strongly advisable keeping in mind that, if any signatures are missing, they cannot be added later without witnesses. In such cases, it is best to re-sign the Will entirely with witnesses present.
Did you know? An unsigned Will, even if prepared by an attorney, holds no legal weight. A Will that is signed but lacks witnesses may also be deemed invalid.
If not, did you use a mark or thumbprint?
If you were unable to sign your Will and used a mark or thumbprint instead, this must have been done in the presence of a Commissioner of Oaths. The Commissioner must then certify and sign every page of the Will. This process is often necessary when a testator is physically unable to sign due to illness or weakness.
Did you know? A Will signed with a thumbprint must be accompanied by a sworn statement from the Commissioner of Oaths, confirming that the testator understood the contents of the document.
Is your Will dated?
Although not a legal requirement, dating your Will is highly recommended to avoid confusion regarding its most recent version. Keeping older, revoked Wills can create uncertainty, so it is best to destroy outdated copies.
Did you know? If multiple versions of a Will exist and none explicitly revokes the previous ones, the court may attempt to interpret them together, which can complicate the estate administration process.
Were your witnesses over the age of 14 when they signed?
Witnesses to your Will must be at least 14 years old and must sign in your presence at the same time and place. Their role is to attest that you signed the Will voluntarily meaning that they do not need to read or understand its contents. Some testators include an attestation clause for added security.
Did you know? If your witnesses sign separately from you, the Will could be declared invalid. Always ensure that all signatories are present together.
Where did your witnesses sign?
While not legally required, it is advisable for witnesses to sign each page of the Will. However, their signature must appear as close to the last line of the final page as possible.
Did you know? If a witness’s signature is missing from the last page, the Will may not be accepted as valid by the Master of the High Court.
Do your witnesses stand to benefit from your Will?
If a witness stands to inherit, the Will’s validity may be challenged. If you realise that a witness is named as a beneficiary, it is best to re-sign the Will with new witnesses.
Did you know? In South Africa, a beneficiary who has witnessed a Will can still inherit, but their portion of the inheritance may be forfeited unless the court grants special permission.
Have you included the correct personal information?
To avoid ambiguity, include your full name, ID number, and marital status in your Will to ensure that there is no confusion regarding the identity of the testator.
Did you know? If multiple family members share the same name, failing to include your ID number could result in disputes over your estate.
Have you clearly identified your beneficiaries and heirs?
Your Will should clearly state the full names, ID numbers, and relationship of each heir. Vague terms like “my family” or “my employee” can lead to uncertainty and legal disputes.
Did you know? A bequest to “all my children” may be contested if there is uncertainty regarding illegitimate or adopted children.
How big is the gap between the last paragraph and your signature?
A significant gap between the last paragraph and your signature can raise suspicions of tampering. Keep the spacing minimal to reduce the risk of fraud.
Did you know? A fraudster could exploit a large gap by adding additional clauses to your Will, potentially altering its intent.
Have you dealt with the residue of your estate?
Ensure that your Will includes a clause addressing the residue of your estate—everything left over after specific bequests have been distributed. Without this clause, the remainder of your estate will be distributed according to intestate succession laws.
Did you know? Failing to address the residue of your estate can result in unintended beneficiaries inheriting portions of your assets.
Do you know where the original Will is located?
Only the original Will is accepted by the Master of the High Court. It is advisable to sign three originals and store them in separate, secure locations. Ensure that your loved ones know where to find them to prevent delays in estate administration.
Did you know? If an original Will is lost and only copies exist, the court may require extensive proof before accepting the copy as valid.
By carefully reviewing these factors, you can safeguard your Will’s validity and ensure your final wishes are honoured without unnecessary legal complications.
Have a fantastic day.
Sue
