Formalities for a Valid Will

Do you have a valid will?

It is vital to make sure that you have a valid will. Sometimes people choose to draw up their own will or they feel the need to put a will in place in a hurry and don’t have time to get to a professional. If you are in this position, it is important to ensure that your DIY will meets all of the requirements set out in the Wills Act for a valid will. If your will does not meet the required formalities, your will may be declared invalid.

Before we take a look at the required formalities, let’s explain some of the terminology used when drafting wills.

Firstly, most wills start with a paragraph which revokes all previous wills. Revoke means to annul, so this would mean that the directions set out in the previous will will be ‘taken back’ and the new will will replace the previous will.

The person whose will it is is called a Testator if he is male and a testatrix if she is female. In this article we will refer to testator, but the same rules apply regardless of gender.

The required formalities for a valid will are as follows:

• The testator must be older than 16 and mentally capable of understanding the consequences of his or her actions.
• The testator must sign their full signature at the end of the document. It is advised that the signature is placed close to the end of the text. If there is a big gap before the signature, there is more chance of questions being raised about text being added after the testator signed the will.
• The document must also be signed by two competent witnesses at the same time. Witnesses can be anyone above the age of 14 who have contractual capacity and are mentally capable of understanding the consequences of their actions.
• The witnesses must sign in the presence of the testator and of each other at the same time. A beneficiary or executor should not sign a will as a witness. They may be disqualified from inheriting if they do, however, the validity of the will will not be affected. The witnesses do not have to read the will, they are only witnessing that the testator is signing the will and that the other witness is signing the will.
• If the document is more than one page, every page must be signed by the testator. Although not stipulated in the Wills Act, to be safe we ask the witnesses to sign every page as well.
• The testator can ask someone to sign the will on his behalf or sign by making a mark if he cannot write. If this happens, a commissioner of oaths must be present when the document is signed and the commissioner of oaths must certify that she has satisfied herself as to the identity of the testator and that the document is the will of the testator and every page of the document is signed.* The commissioner must sign every page of the will and place her certificate and signature on the will as soon as possible after the will has been signed.
• If the will is amended after signature, the testator and two competent witnesses must sign next to each amendment and the testator and both witnesses must all be present at the same time to sign for the amendments. *The same rules regarding the commissioner of oaths apply to an amendment made to a will and signed for by making a mark or by another person at the direction of the testator.
• It is highly recommended to date your will to avoid any confusion in case more than one will is found at your death. It is also important to revoke previous wills made, if your intention is to replace your previous will entirely.

We always recommend seeking professional advice when drawing up a will because, beside the above formalities for a valid will, there are a lot of other factors which you need to keep in mind when planning your estate or drawing your will.

If you’d like to get a professional to draw your will, you can complete our easy Online Will Form at www.pagdens.co.za/wills/ and we will contact you with our suggestions.

This article is for general information should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact an attorney for specific and detailed advice. Errors and omissions excepted (E&OE)