Essentials of a Valid Will
It is important to make sure you have a valid will otherwise you will die intestate and your estate will be dealt with under the rules of the Intestate Succession Act of 1987.
The law of succession determines what will happen to a person’s estate when he (includes female) dies. A person can die:
- testate e.g. a person disposes of his estate by means of a valid will; or
- intestate e.g. a person’s estate is not dealt with in a will or the will is invalid or the will is partially valid; or
- contractually (“pactum successorium”) e.g. lawful succession can only happen contractually through an antenuptial contract.
It is important to make sure you have a valid will otherwise you will die intestate and your estate will be dealt with under the rules of the Intestate Succession Act of 1987. Therefore, the existence of a valid will ensures that you can select your heirs, that you prescribe the extent of entitlement, define the conditions under which any person may benefit and also allows you to select your executor and/or trustees (in case of a testamentary trust).
There are certain formalities that must be followed to ensure that a will is valid. The following are some of the more important requirements of the Wills Act 7 of 1953:
i. Anyone 16 years and older can make a will, provided that the person is mentally capable of appreciating the effect of what he or she is doing. This person is called the testator or testatrix. The will must be in writing and must be signed by the testator or testatrix or by both in case of a joint will, or by some other person in his or her presence who signs on a person’s behalf and by his or her direction.
ii. The will must be signed in the presence of two or more competent witnesses, who must be 14 years or older. The witnesses must sign the will in the presence of the testator or testatrix and of each other.
iii. Each page of the will must be signed by the testator/testatrix. It is only necessary for the witnesses to sign the last page of the will.
iv. Where the testator/testatrix signs by making a mark (for example a thumb print), a Commissioner of Oath must certify that it is the will of the testator.
v. Although it is not necessary to date a will for it to be valid, dating it is important to determine if it is the last will.
vi. Generally, a witness who has signed a will cannot benefit under the will and can also not be the executor of the deceased’s estate.
However, a witness to a will is not disqualified from benefiting in the following circumstances:
- A court may declare a witness or his spouse to be entitled to benefit if the court is satisfied that the witness or his spouse did not defraud or unduly influence the testator.
- A witness or his spouse who would have benefited had the deceased died intestate will be entitled to a benefit up to the amount they would have benefited had the deceased died intestate.
- A witness or his spouse may benefit if the will has been witnessed by at least two other competent witnesses who are not beneficiaries of the will.
vii. Section2C(2) of the Wills Act also provides for the automatic substitution of a beneficiary in certain circumstances. If a descendant of a testator is a beneficiary under the will, and that descendant:
- has died before the testator;
- has not renounced their benefit that they are entitled to in terms of the will; or
- is disqualified for whatsoever reason from inheriting in terms of the will, the provisions of section 2C(2) of the Wills Act apply. The section provides that if a testator has not nominated an alternative, and if a descendant of the testator cannot or will not take the benefits under the will, that beneficiary’s descendants will automatically inherit in their stead. In terms of section 2C(2) of the Wills Act such automatic substitution will be deemed to be the testator’s intention unless the testator specifically excludes this.
viii. If a descendant of the deceased would have been entitled to benefit under the will at the date of death of the deceased had he been alive, his descendants will per stirpes (Per stirpes, which is Latin for “per branch”, specifies that each branch of the deceased person’s family receives an equal share of the estate, regardless of how many people are in that branch) be entitled to benefit unless the will otherwise indicates.
ix. If a person dies within 3 months after his or her marriage was dissolved by divorce or annulment, and that person had drafted a will before the marriage was dissolved, the ex-spouse will not inherit unless it was clear that the deceased intended to allocate a benefit his or her ex-spouse. If the person dies after 3 months of the dissolution of the marriage the ex-spouse can inherit under a will drafted before the marriage was dissolved.
x. If a court is satisfied that a document is intended to be a will, the court must order the Master of the High Court to accept it as a will, even if all the required formalities have not been complied with.
- Notes on South African Income Tax by Philip Haupt.
- Wills Act 7 of 1953.