Legal Articles

The importance of putting wishes in a Will can never be overemphasised. Amongst many other benefits, it provides for an easy and clear process of devolution of the estate of the deceased with less or without disputes.

Unless it is proved that the Testator lacked capacity, was under coercion or undue influence at the time when the Will was executed, the golden rule is that the wishes of the Testator ought to be given effect to and this is a principle which the Courts will only divert from under exceptional circumstances.

Writing Your Will in South Africa

This article will respond to some of the prominent queries that we receive from our clients with regards to Wills, so as to give a general guidance. Our astute Estates Department Attorneys are available to assist comprehensively in the drafting of Wills, challenging the validity of a Will, administration of a deceased estate, getting Letters of Executorship or Authority and many other matters relating to deceased estates.

Who can execute a Will?

Persons of 16 years of age and older can execute a will, provided that they have the capacity to appreciate the consequences of their actions e.g mentally ill persons do not have such capacity.

Who can act as a witness in a Will?

A person who is 14 years of age and above may act as a witness in a Will. However, such person may not be a beneficiary in that Will (subject to exclusions, kindly consult with us for comprehensive guidance). The witness and their spouse may also not be the Executor appointed in that Will.

Where can a Will be kept?

Besides assisting with drafting a Will, we can also keep your Original Will at an affordable fee in the event that you opt to do so. Attorneys and other institutions such as banks, also keep Wills for their clients. One may also keep their own Will in a safe place.

Which are the requirements of a valid Will?

• Must be in writing
• Signed by the Testator at the end of the Will
• The Testator must sign in the presence of at least two competent witnesses
• The witnesses must sign in the presence of the Testator and of each other
• Testator must sign all the pages of the Will if it has more than one page, whereas witnesses may only the last page

What must be done if the Testator cannot sign their name?

In such case the Testator may either sign with a mark, or ask someone to sign on their behalf. In both these instances, the Commissioner of Oaths must be present and certify that the identity of the Testator is indeed correct and that the Will is that of the Testator. The Commissioner of Oaths must also sign every page of such Will.

Is a Codicil the same as a Will?

While a Codicil and a Will are both testamentary documents, they are not the same. A codicil is in the form of an annexure or addendum to the Will, to amend or supplement the Will. A codicil must comply with all the requirements such as those of a valid Will.

Who is not entitled to benefit under a will?

• Any person who signs as a witness in that Will and their spouse (subject to exclusions)
• Person who writes the Will on behalf of the testator in whole or partially
• Party that caused the death of the deceased (Danielz NO v De Wet and another; De Wet v Danielz NO and Another (2008) 4 All SA 549 (C).

Van Deventer & Van Deventer Inc. – Estates, Wills, and Trusts Attorneys South Africa

In the next leg we will respond to some other questions with regards to Wills and how we can assist. We assist with administration of estates, drafting of Wills, storage of Wills, amendments of Wills (Codicils) and challenging the validity of Wills.

Contact us for comprehensive assistance.

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