The validity of your Will is paramount to ensuring that your assets are distributed amongst your heirs in accordance with your wishes – and checking the validity of this all-important document means paying careful attention to the detail. Here’s a checklist that’s worth going through to determine whether your Will can stand up to legal scrutiny.
Were you mentally sound at the time of drafting your Will?
The requirement that a testator or testatrix is mentally sound at the time of making a Will requires that the person was capable of appreciating the consequences of their actions. This means that if you were under the influence of alcohol, narcotics, or other mind-altering substances when you drafted your Will, you are effectively leaving room for your Will to be challenged. Similarly, if you were suffering from a mental illness which impacted on your mental capacity at the time of signing your Will, this too can provide grounds for your Will to be challenged. However, keep in mind that if someone alleges that you lacked mental capacity when drafting your Will, the onus of proof rests on the person making the allegation. It is a legal requirement that anyone drafting a Will is over the age of 16. However, it is unlikely that you drafted your Will before this age, but for the sake of completion we have mentioned this particular requirement for validity.
Did anyone influence you or pressurise you?
Your Will is a confidential document, and you are free to bequeath your assets in any way you please. You are under no obligation to discuss or share the contents of your Will with anyone – not even your spouse. This means that if anyone unduly influenced you when drafting your Will or pressurised you in any way, the document can be challenged – although once again the burden of proof rests on the person making the allegation.
Who typed or wrote out your Will?
Most people seek professional advice when drafting their Wills which means that someone else usually types out the document for them, which is perfectly adequate provided that the person typing out the Will does not stand to benefit in any way from the estate. If you wrote out your Will by hand, make sure that your writing is clear and legible as any illegible handwriting may cause confusion and raise questions. Again, if someone else wrote out your Will for you, make sure that person is not named in your Will.
Did you sign your Will in full?
It is a legal requirement that you sign in full on the last page of your Will, so make sure that the document includes your full signature and not an initial. While you are permitted to sign anywhere on the past page, it is advisable that your signature is placed at the bottom of the page and as close to the last paragraph as possible. While you are not legally required to sign on every other page of your Will, it is highly advisable that you do so. If you find that you haven’t signed on all the preceding pages of your Will, keep in mind that you cannot simply add your signature after the fact. Your signature must be attested to by two witnesses who are present at the time of signing. In such circumstances, it would be better to re-sign your Will altogether.
If not, did you use a mark or thumbprint?
If for whatever reason you were unable to sign your Will in full and used a mark or a thumbprint instead, make sure that this was done in the presence of a Commissioner of Oaths, and that the Commissioner certified the Will and signed every page of the Will. Thumbprints or marks are often used in circumstances where a testator is too weak or ill to sign in full, and it is important to be aware of these special requirements.
Is your Will dated?
Interestingly, it is not a legal requirement that your Will be dated, although it is highly advisable that you do so to avoid confusion. If your Will is clearly dated there can be no confusion as to which is the latest version of your last will and testament. Having said that, it is always advisable to destroy all copies of previous Wills.
Were your witnesses over the age of 14 when they signed?
Make sure that the two people who witnessed your Will were over age 14 at the time of signing. Further, make sure that you and your two witnesses signed at the same time and place as failure to do so can render your Will invalid. Remember, your witnesses are not required to read or understand the contents of your Will. Their job is to attest that you signed the Will in their presence. As additional security, some testator’s include an attestation clause that reads along the lines of ‘We, X and Y, hereby confirm the signature of testator Z and declare that we have signed the will of Z on DATE in the presence of one another and of Z’. Remember, if your witnesses did not sign in your presence, they cannot simply add their signatures. You will need to resign the Will altogether.
Where did your witnesses sign?
Although it is not a legal requirement that your witnesses sign on every page, it is advisable to ensure that they do so. They must, however, sign as close to the last line of the Will on the past page.
Do your witnesses stand to benefit from your Will?
If the witnesses to your Will stand to benefit in any way from your estate, this can cause validity problems. If you’ve realised that your witnesses are named beneficiaries in your Will, you will need to resign your Will using new witnesses.
Have you included the correct personal information?
To avoid any doubt or confusion as to who the testator is, make sure that your Will includes your full names and ID number. Many families make use of family names that get past through generations resulting in multiple members of the same family bearing the same first name, middle name, and surname, so be sure to clearly identify yourself. Further, your marital impacts your freedom of testation, so ensure that your Will includes your marital status and how you are married.
Have you clearly identified your beneficiaries and heirs?
Similarly, make sure that you have clearly identified your beneficiaries, heirs and legatees to avoid confusion. Ideally, you should include their full names, ID numbers, and their relationship to you. Avoid general terms such as ‘members of my family’ or ‘my domestic worker’ as these are not easily identifiable.
How big is the gap between the last paragraph and your signature?
You must ensure that there is no sizeable gap between the last paragraph of your Will and your signature, as this can lead to your Will being declared invalid. A significant gap can provide fraudsters and those will ill-intent opportunity to add to your Will without your knowledge.
Have you dealt with the residue of your estate?
Make sure that your Will includes a clause that specifically deals with the residue of your estate which is everything left over once you have made provision for your heirs and legatees. If your Will does not include such a clause, the residue of your estate will be distributed in accordance with the laws of intestate succession, and you will be deemed to have died partly intestate.
Have you revoked all previous Wills?
You want to avoid any confusion or uncertainty at all costs which means that your current Will should specifically revoke all previous Wills. If you die with multiple versions of a Will in existence, you risk the chance of these Wills being read and interpreted together.
Does your Will specifically refer to your South African assets?
If you have both local and offshore assets, make sure that your local Will specifically refers to your South African assets, and that you have a separate Will dealing with your foreign assets. If you have acquired offshore assets since drafting your Will, you may want to get advice on updating your local Will and having a foreign Will drafted.
Have you made amendments to your Will?
If you have made amendments to your Will after signing, you must ensure that the amendments have been clearly made and that both you and your witnesses have signed next to the amended areas. You are not required to use the same two witnesses who originally attested your Will, although you must ensure that they sign in your presence and vice versa.
Do you know where your original Will is located?
Remember, only the original of your Will is acceptable by the Master, and a copy of your Will is not deemed valid. Ideally, make sure that you and your witnesses sign three originals of your Will, and that each original is kept in a separate location. Importantly, make sure that your spouse or loved one knows where the originals of your Will are kept to avoid delay in the administration of your estate.
Have a wonderful day.
Sue
