How to draft a legally valid and enforceable will

Many people take it upon themselves to draft their own will and although there is nothing wrong with it, the risk exist that they then fail to comply with the formalities prescribed by the Wills Act 7 of 1953, which could in return render the will invalid and result in the estate being administered in terms of the Intestate Succession Act 81 of 1987.

So what exactly is a will? A will is a written document in which a person, who is older than 16 years and mentally capable, voluntarily sets out his instructions as to how his estate should devolve upon his death. Taking this into consideration it is clear that a will must be in writing and must be made freely.

The above is however not the only requirements. In fact, the Wills Act prescribes a number of formalities with which a will must comply in order to be valid and these formalities are as follows:

  1. the will is to be signed at the end thereof (directly beneath the attestation clause), by the testator or by some other person in his presence and by his directions;
  2. the will is to be signed in the presence of two or more competent witnesses who are older than 14 years and have no interest in the will, i.e. are not heirs in terms of the will;
  3. the witnesses are to attest and sign the will in the presence of the testator and of each other. (The witnesses do not have to know the content of the will, but merely have to acknowledge that they have seen the testator sign the will);
  4. if the will consists of more than one page, each page other than the last page must also be signed by the testator or by such other person as referred to in paragraph 1 above, anywhere on the page;
  5. if the will is signed by the testator by making a mark or by some other person in the presence and by the direction of the testator a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator.

 

Furthermore the testator should also nominate an executor (i.e. person who will be responsible for the administration of the estate), appoint heirs and legal guardians for minor children, in the will.

 

The formalities and guidelines set out above are only a few aspects that have to be taken into account when drafting a will. We therefore recommend that one rather obtains professional estate planning advice when considering drafting a will.

 

Article written by

Landie Saaiman
landie@dyason.co.za