Corporate Accountability and Human Rights: Aligning South African Business Practices with Constitutional Values
September 13, 2023
Wills and Estates
Wills Act – requirements for a valid will
Without a will and testament, the law considers you to have died without a plan. This means your estate will be handled in accordance with the provisions of the Intestate Succession Act, not your preferences. So, by making a will you ensure that your assets are distributed in accordance with your wishes after your death.
Having a will at the time of death does not only help with the administration of your assets but can also give your relatives ease of mind and a sense of security. Through the use of a will, you will be able to determine how your estate, which includes all your debts and assets moveable and immoveable, corporeal and incorporeal which you had at the time of death will be administered.
The formalities required for the execution of a valid will
In order for one to have a valid will, certain requirements need to be satisfied as set out in Section 2 (1) (a) of the Wills Act 7 of 1953 (“the Act”). These requirements can be summarised as follows:
- The will must be signed at the end thereof by the testator/ testatrix or amanuensis (a person acting in the presence and under the direction of the testator/ testatrix).
- The signature of the testator/ testatrix or amanuensis must be made in the presence of two or more competent witnesses that are present at the same time.
- The witnesses then need to sign the will in the presence of the testator/ testatrix and amanuensis and each other.
- If the will has multiple pages, then the testator/ testatrix or amanuensis needs to sign each page thereof.
- If the will is signed by the testator/testatrix or amanuensis by way of a mark, a commissioner of oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the signed will is that of the testator/testatrix and that each page except the last page is signed on the page by the commissioner. Provided that:
- The will is signed in the presence of the commissioner of oaths in terms of sub- paragraphs (i), (iii) and (iv) and that the certificate concerned is made as soon as possible after the will has been signed.
- in the event that the testator/testatrix dies after the will has been signed, but before the commissioner of oaths has made the certificate concerned, the commissioner shall as soon as possible thereafter complete his/her certificate.
Some additional practical advice to keep in mind when drafting a will:
- The will must be in writing either handwritten or typed;
- Any person of or over the age of 16 (sixteen) can make a will provided he is capable of appreciating the nature and effect of his act.
- In terms of section 4A (1) of the Act a beneficiary (who will benefit from the estate of the deceased) or Executor in terms of the will should not sign the will as a witness as they stand to be disqualified from inheriting.
- Remember to revoke all previous wills and testamentary writings to give effect to the new one;
- Sign your will in duplicate or triplicate as the Master requires the original will upon the deceased’s death.
- Make provision for divorce in your will or immediately update your will upon getting divorced. If not updated within 3 (three) months of getting divorced and an ex-spouse is a named beneficiary, it will be assumed that the deceased intended for them to inherit, and they will remain a beneficiary.
- In terms of Section 2B of the Act, if one dies within 3 (three) months of their divorce, their ex-spouse will be treated as having predeceased them and will be excluded from inheriting in terms of the will (unless a contrary intention can be shown from the wording of the will).
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