Requirements For A Valid Will South Africa

if you are looking for requirements for a valid will in south Africa, then you are at the right place. In todays topic, we will be talking about requirements for a valid will in south Africa. Kindly Enjoy.

Why do I need a will?

When you pass away, your fortune is unlikely to mean much to you, but do you want your life’s effort to be divided among undesirable heirs? After all debts and administrative charges have been deducted, the balance of your assets will be inherited by your qualified beneficiaries under the laws of succession. If you die without leaving a legal will, your estate’s assets will be allocated according to the Intestate Succession Act 81 of 1987. This could mean that your least favorite child or an estranged spouse inherits a chunk of your assets that you would have otherwise donated to the SPCA.

Make sure to prepare a legitimate Last Will and Testament if you want to ensure that your favorite individuals (or animals) benefit from the wonderful results of your labor when you die away.

Freedom of Testation

To prevent fraud and imitation, the formalities of creating a will are quite severe. However, the principle of testification freedom is fairly permissive. It gives a testator broad authority to write a will and testament that specifies how the estate’s assets should be dispersed after death.

The freedom of testation is subject to many common law restrictions. For example, a will provision cannot be carried out if it is illegal, against good morals, overly imprecise, or impractical to carry out. In addition, the deceased’s minor children have a common law right to maintenance. Specific legislation may also limit one’s ability to testify, such as in cases involving pension money, trust property, or spousal support.

Requirements for drafting a valid will?

Section 2(1)(a) of the Wills Act 7 of 1953 outlines the conditions for creating a legal will. They’re simple enough, but even a seemingly insignificant error might invalidate the entire document. In order to avoid scenarios that could invalidate a will and frustrate the testator’s good intentions, the court is given the ability to forgive a will that does not follow all of the procedures. However, in order to avoid any issues or delays, it is usually essential to follow all of the requirements. Some of the basic requirements for creating a legal will are as follows:

The testator must be older than 16 years of age.
At the time the will was written, the testator had to be mentally capable of comprehending the consequences of his or her acts. Wills or provisions drafted under coercion, undue influence, or by mistake will be declared illegal. After 9 whiskeys, persuading your father-in-law to include you to his will is frowned upon, and the relevant terms may be challenged in court. The person making the claim bears the burden of proof in proving the testator’s mental infirmity or lack of intent.
The will must be written down. It can be handwritten or printed, as long as it is legible. Don’t forget to sign it with your name.
At the end of the will, the testator must sign. While the act is unclear on this point, it is suggested that the signature be placed right below or as close to the last line of the will as practicable. If there is a considerable gap between the last line of the will and the signature of the testator, the will may be considered invalid. Furthermore, where the testator is paralyzed or too weak to sign, the following methods of signature may be required:
- A testator has the option of having someone sign on his or her behalf. In this case, the signature must be witnessed by the testator, at least two competent witnesses, and an oaths commissioner. The will must be certified and each page signed by the commissioner of oaths.
- In the presence of at least two competent witnesses and an oath commissioner, a testator may sign a will by making a mark or thumbprint. The will must be certified and each page signed by the commissioner of oaths. Witnesses are not permitted to sign with a mark or fingerprint.
If the will is more than one page long, the testator (or someone acting on his behalf) must also sign each subsequent page, anywhere on the page.
On the last page, the testator’s signature must be made or acknowledged in the presence of two competent witnesses who are present at the same time. A competent witness is someone above the age of 14 who is of sound mind and capable of understanding the implications of his or her acts and can testify in court, according to section 1 of the Wills Act.
The last page of the will must be signed by the witnesses. Signatures can be placed anywhere on the last page, although it is advised that they be placed below or as close to the last line of the will as possible. The testator’s signature or the signature of the person signing on the testator’s behalf is witnessed by the witnesses. As a result, the witnesses are not required to read the will. It is advised that the witnesses include an attestation clause along the lines of: “We, X and Y, hereby affirm the signature of testator Z and declare that we signed the will of Z on DATE in the presence of each other and of Z.”
It is advised that the witnesses sign every other page of the will, even if it is not required by law.
As a witness, a beneficiary or executor should not sign a will. If they do, they may lose their inheritance rights under the will. However, the legitimacy of the will is unaffected.
While dating your final will and testament is not a formal requirement for validity, it is highly suggested to avoid any confusion in the event that more than one will is discovered.

Amending your Will

Because a testator has the right to cancel or change his or her will at any moment before death, if you’re expecting an inheritance, make sure to play nice until the end. Remember that no one has a basic right to inherit.

Will amendments are governed by section 2(1)(b) of the Will Act. Any deletion, addition, alteration, or interlineation is considered an amendment. A codicil, which is a schedule or annexure to an existing will, must follow the same standards as a legitimate will in order to be valid. A codicil’s witnesses do not have to be the same as the will’s witnesses.

Amendments to the will itself must be signed by the testator or a person authorized to sign on his behalf. The signature must be placed as close to the amendment as possible in the presence of two witnesses present at the same time. The witnesses must also sign as close to the amendment as possible. If the testator signs the amendment with a mark, thumbprint, or a delegated person, the commissioner of oaths must also satisfy himself as to the testator’s intents and identity before certifying the amendment.

If a testator wishes to remove his or her entire will, this is considered a revocation, and the Wills Act’s section 2(1)(b) does not apply. A will can be revoked by the execution of a new will that expressly revokes the previous one, or by the destruction of a will with the intent to revoke it.

Should you amend your will after a divorce?

Definitely if you don’t want your ex to inherit. The Wills Act allows freshly divorced testators a three-month grace period during which they can suppose the divorced parties are no longer friendly. As a result, if the testator dies within three months of the divorce, the will is understood as though the surviving party died before the deceased, and the estate is allocated as such. If a divorced testator does not revise or prepare a new will within three months of their divorce, it will be assumed that the testator desires his or her ex-spouse to benefit from the will.