Your will is integral to ensuring the efficacy of your estate plan and, as such, making sure that your will meets the requirements for validity is paramount. In this article, we unpack the requirements for a valid will and provide useful insights into the drafting of your will.
The requirement that a testator or testatrix is mentally sound at the time of making a Will means that the person must be capable of appreciating the consequences of their actions. As such, if the testator was under the influence of alcohol, narcotics or mind-altering substances at the time of drafting the will, the will may be challenged on this basis. Similarly, if the testator was suffering from a mental illness that impacted their mental capacity at the time of signing the will, this too can provide grounds for the will to be challenged. That said, bear in mind that if someone alleges that the testator lacked mental capacity at the time of signing his will, the onus of proof rests on the person making the allegation. On a similar note, if the testator is unduly influenced or pressurised into drafting a will, the document may be challenged although, once again, the burden of proof rests on the person making the allegation.
Typed versus handwritten will
It is perfectly acceptable for someone else to type out the testator’s will providing that the person does not stand to benefit from the estate. You may also choose to write out your will by hand, although it is essential to ensure that your writing is clear and legible so as to avoid uncertainty. Again, if someone else writes out your will for you, be sure that they do not stand to inherit from your estate.
It is a legal requirement that a will is signed in full on the last page of the document, although it is advisable to ensure that the will is signed on every other page as well. While you are permitted to sign anywhere on the last page, it is advisable that your signature is placed at the bottom of the page and as close to the last paragraph as possible – keeping in mind that a sizeable gap can provide fraudsters and those will ill-intent an opportunity to add to your Will without your knowledge. 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.
The use of 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 document. 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.
Although it is not a legal requirement that your will be dated, 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. Ideally, destroy all previous versions of your will.
It is a legal requirement that two people of sound mind who are over the age of 14 years attest to you signing your will. Make sure that you and your two witnesses sign 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, but to attest that you signed the document in their presence. Again, while it is not a legal requirement that your witnesses sign on every page, it is advisable to ensure that they do so, keeping in mind that they must sign as close as possible to the last line on the last page of the document. Once again, if any of your witnesses stand to benefit from your estate, note that the validity of your will can be challenged.
To avoid any doubt or confusion as to who the testator is, make sure that your will includes your full name 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.
Heirs and beneficiaries
Again, make sure that your beneficiaries, heirs and legatees are clearly identifiable by including their full names, ID numbers and their relationship to you. Avoid using general terms such as ‘members of my family’, ‘my loved ones’ or ‘my domestic worker’ as these are broad terms that fail to identify an actual person (or persons).
The residue of your estate
Your will should also include a clause that makes provision for the residue of your estate which is essentially those assets left over after your beneficiaries and legatees have received their inheritances or bequests. Note that if your will does not deal with the residue of your estate, the residue will be distributed in terms of the laws of intestate succession, and you will be deemed to have died partly intestate.
To avoid any confusion or uncertainty, consider including a revocation clause which effectively revokes any previous wills that may be in existence. If you die with multiple versions of a will in existence, you risk the chance of these wills being read and interpreted together.
Remember, only the original of your will is acceptable by the Master’s Office. Ideally, ensure 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 delays in the administration of your estate.
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