By Emsie Martin
Any person of 16 years and older may in a written document (will) decide what should be done with his property after his death. To be valid, it must be drawn up in accordance with the formalities of the Wills Act (Act 7 of 1953).
Formalities for a valid will
- The will must be signed at the end of the document by the testator or by somebody else in his presence and by his order.
- It must be signed in the presence of two or more competent witnesses, who must be present at the same time.
- A competent witness is a person older than 14 (fourteen) years who is also competent to testify in a court of law.
- The witnesses to the document must sign it in the presence of the testator and each other.
- If the will consists of more than one page, each page other than the page on which it ends must also be signed anywhere on the page by the testator and by the witnesses.
- A witness may not be an heir in terms of the will.
- If the will is signed by the testator by means of a mark, a commissioner of oaths must certify that he has satisfied himself of the identity of the testator and that the thus signed will is the will of the testator.
Formalities regarding an amendment of a will
- The amendment must be made and confirmed by the signature of the testator (or, in his presence and by his order, by the signature of somebody else).
- Two competent witnesses, who are present at the same time, must also sign and initial the amendment.
Revoking of previous wills
- The testator may revoke his will before his death.
- Revocation is effected by the following actions:
– revocation by means of a later will
– revocation by means of a codicil (a separate written document in terms of which specific provisions of an existing will to which it refers are cancelled)
Revocation by destruction
- Revocation through ademption (this is by disposing of or alienating before his death an asset that he left as a bequest in terms of the will.
Contents of a will
The Wills Act does not prescribe the form of a will.
To ensure that a valid will is drawn up, the following paragraphs are recommended:
- explanation of the will
- revocation of previous wills and related documents
- appointment of executor
- bequest of the estate or what remains of it, whether absolutely, unconditionally or in a trust
- the powers and duties of trustees and further conditions if a trust is established
- execution clause
As I said in a previous article, rather consult a professional person to draw up a good will, even if it costs a bit of money.