The importance of executing a Will correctly

My current Will no longer reflected my wishes, and I therefore approached my attorney to attend to drafting a new Last Will & Testament for me. Once my updated Will had been finalised, my attorney provided me detailed instructions on how to properly execute it. My neighbours were around, so I asked them to act as witnesses.

They signed on each page, and then quickly had to leave. Thereafter, I signed the Will myself. I am now concerned about its validity because the email from my attorney clearly stated that I must sign the Will in the presence of two witnesses.

According to the Wills Act, 1953 (Act No. 7 of 1953), certain formalities must be observed for a Will to be legally valid. Section 2 of the Wills Act specifies that a Will is only valid if it is signed at the end by the testator in the presence of two or more competent witnesses, who must also sign the Will in the presence of the testator and each other. In the current scenario, although the witnesses signed in each other’s presence, they did not do so in the Testator’s presence, which raises concerns about the validity of the Will.

Case Law

A similar situation was considered by the Gauteng Local Division of the High Court in Twine and Another v Naidoo and Another. In that case, two daughters contested the validity of their late father’s Will, which left most of his estate to his much younger romantic partner. The father had executed two Wills during his lifetime: one in 2011 and another in 2014, just before his death. The 2014 Will left most of his worth to his much younger partner. The daughters argued that the 2014 will was invalid, claiming their father either did not sign it himself or lacked the mental capacity to do so due to dementia. Despite testimony from handwriting experts, they could not prove that the signature on the 2014 Will was forged.

Another significant testimony came from a witness to the 2014 Will, who explained that she and her husband were asked to sign as witnesses when they encountered the deceased on the way to the police station. They signed the Will but left before the deceased signed it, meaning his signature was not made in their presence.

The court found that the 2014 Will was invalid because the deceased signed it after the witnesses had left, which did not meet the requirement of the Wills Act that the testator’s signature must be made in the presence of the witnesses. Consequently, the court declared the 2011 Will as the valid will of the deceased.

This judgement highlights the critical importance of following the formal requirements set out in the Wills Act.

Summary of the requirements of a validly executed Will

Competency of a Witness to a Will

1. Age and Competency: A witness must be at least 14 years old and not legally disqualified from giving evidence in court at the time of witnessing the Will.
2. Beneficiaries as Witnesses: A beneficiary should not act as a witness. If a beneficiary does witness the Will, they will be disqualified from receiving any inheritance under it.
3. Signing Procedure: As canvassed above, witnesses must sign the Will in the presence of each other and the testator/testatrix, or, if someone else signs on behalf of the testator/testatrix, in the presence of that person.

Requirements for a Valid Will

The Wills Act 7 of 1953, its regulations, and relevant case law set out the following requirements for a valid Will:

1. Written Document: The Will must be in writing, whether typed or handwritten.
2. Testator/Testatrix Signature: The testator/testatrix must sign on any page, except the last page, where they must sign at the end of the text.
3. Witnesses: Two competent witnesses must witness the Will. It is advisable, though not legally required, that witnesses sign each page.
4. Multiple Pages: If the Will has multiple pages, the testator/testatrix must sign each page. Witnesses are only legally required to sign the final page, but signing every page is recommended.
5. Dating the Will: While not mandatory, it is strongly recommended to date the Will to determine which version is the most recent.

Signing the Will

If the testator/testatrix is unable to sign:

1. Alternative Signatory: Another person may sign the Will in the presence and at the direction of the testator/testatrix, and in the presence of two competent witnesses.
2. Marking the Will: The testator/testatrix may also sign by making a mark.

In both cases, a commissioner of oaths must verify the testator/testatrix’s identity and confirm that the Will belongs to them. The commissioner must sign every page and provide a certificate on the last page.

Invalid Will Due to Non-Compliance with Legal Requirements

Background: Mrs. Smith, a widow, decided to draft a new Will to distribute her estate among her three children. She wrote the Will by hand, specifying her wishes clearly and included detailed instructions for the distribution of her assets. However, several legal requirements for a valid Will were not met, which ultimately led to the Will being declared invalid.

Facts:

1. Failure to Sign in the Presence of Witnesses: Mrs. Smith signed her Will alone at home without any witnesses present. She then asked her neighbour and her daughter to sign as witnesses the next day, but they did not sign in each other’s presence or in the presence of Mrs. Smith.
2. Beneficiary as a Witness: One of Mrs. Smith’s children, who was also a primary beneficiary under the Will, signed as one of the witnesses.
3. Commissioner of Oaths Not Involved: Mrs. Smith was unable to sign properly due to arthritis and made a mark instead. However, there was no commissioner of oaths involved to verify her identity, sign each page, or provide a certificate on the last page.
4. Undated Will: The Will was not dated, creating confusion over its validity compared to a previous Will Mrs. Smith had made years earlier.

Outcome:

When Mrs. Smith passed away, her Will was contested in court on the grounds that it did not comply with the Wills Act 7 of 1953. The court found the following issues:

• Improper Witnessing: The Will was signed without the witnesses being present together or in the presence of the testatrix, violating the requirement that the Will must be signed with witnesses present to each other and the testator/testatrix.
• Beneficiary Witness: One of the witnesses was a beneficiary, disqualifying that person from inheriting and further invalidating the witnessing process.
• No Commissioner of Oaths: Since Mrs. Smith signed by making a mark, the lack of a commissioner of oaths’ involvement made the Will invalid as it failed to satisfy the procedural requirements.
• Undated Document: The absence of a date made it impossible to determine whether this Will was the final version compared to previous Wills.

Conclusion:

The court ruled that the Will was invalid due to these procedural defects. As a result, Mrs. Smith’s estate was distributed according to intestate succession laws, which differed significantly from her intended wishes. This case highlights the importance of ensuring that all legal requirements are meticulously followed to avoid a Will being declared invalid.

FOR ENQUIRIES:

Meyer de Waal

MDW INC meyer@mdwinc.co.za

021 461 0065 & 083 653 6975

Daniela Papa

daniela@mdwinc.co.za

021 461 0065 & 083 783 8494

Devedine Armstrong

devedine@mdwinc.co.za

021 461 0065 & 076 902 4027

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