The formalities for drafting a will, which are set out in the Wills Act, are deliberately strict to reduce the chance of fraud or impersonations by chancers or those seeking to take advantage of a testator or testatrix. In this article, we unpack the legal requirements for a valid will and outline a number of other considerations which, while not legal requirements, may help to reduce uncertainty when it comes to documenting your last words.
The testator or testatrix
Firstly, anyone age 16 years and older is capable of writing a will provided that they are mentally capable of understanding the consequences of their actions at the time of drafting the will. It does not matter if, subsequent to drafting their will, they lose mental capacity or mental acuity. The testator must also be free from undue influence or duress when writing their will, and must not be pressured in any way by another person. If a person alleges that a testator lacked mental capacity at the time of writing their will, or was unduly influenced by a third party, the onus rests on the person making the allegation to provide proof.
A written or printed will
A will must be either printed or handwritten and must be clearly legible. It must also clearly include the testator’s full name which, in general, is stipulated in the first paragraph of the will. Importantly, the person writing or typing out the will must not stand to benefit from the will as they can be disqualified from doing so.
Signing a will
Legislation requires that the testator must sign at the end of the will, ideally as close to the last line of the will as possible. It is advisable to leave no space between the last paragraph of the will and the testator’s signature as this could be used by fraudsters to insert additional wording after the will has been signed and witnessed. If the will is longer than one page, the testator must sign in full on each page. It is advisable to avoid using a combination of initials and full signature as this can serve to create inconsistency and doubt.
Signing on behalf of a testator/testatrix
If a testator is unable to physically sign their will as a result of illness or frailty, they may request another person to sign on their behalf although, once again, it is important that such a person does not stand to benefit from the will. Further, such a signature must be made in the presence of the testator, at least two competent witnesses and a commissioner of oaths. Where a testator signs by using a mark or thumbprint, the commissioner of oaths is required to attach a certificate to the will confirming that the mark or thumbprint belongs to the testator.
Witnessing a will
It is essential that the testator’s signature on the last page be signed in the presence of two competent witnesses who are age 14 years or older, and who are capable of understanding their actions. Witnesses are not required to read the will or understand the contents of the will – they are merely there to attest that the testator signed the document in their presence, and vice versa. Although not a legal requirement, the witnesses should sign in full on each page of the will and, as above, avoid using a combination of initials and full signatures. Importantly, a beneficiary or the testator’s spouse should not sign as witnesses to the will as this could disqualify them from inheriting from the will. Bear in mind that if a beneficiary who signed as a witness to a will is disqualified from inheriting, they will need to bring an application to the High Court to prove that they did not unduly influence or pressure the testator into signing the will.
Although it is not a legal requirement to date a will, it is always advisable to do so as it will help those left behind to determine the sequence of documents in the event that a testator leaves more than one will behind.
Common law limitations
A provision of a will cannot be exercised where it is unlawful, against good morals, too vague or impossible to perform. For example, a testator cannot leave an inheritance to a son on condition that he does not enter into a same-sex marriage or doesn’t marry someone of another race. Vague references in a will can also create uncertainty and it is important for testators to be as specific as possible when naming heirs and beneficiaries. This includes referencing their full names and identity numbers as well as their relationship to the testator. A reference to ‘my children’ can be considered vague especially where the testator has children from a previous relationship or stepchildren.
A revocation clause is a paragraph inserted in your will which revokes all other wills that you have ever drafted and declares the current will to be your last will and testament. Although a testator is not legally required to include such a clause, it is always advisable to do so to avoid unnecessary confusion.
Residue of estate
It is also important to include what is referred to as a ‘leftovers’ clause in your will so as to deal adequately with the residue of your estate. Remember, after all debts have been settled, any bequests or legacies that you have stipulated in your will are paid out to the nominated heirs or legatees, following which the residue of your estate is distributed amongst your beneficiaries. However, if you have not specifically stipulated how you would like everything else remaining in your estate dealt with, the residue of your estate could be distributed in terms of the law of intestacy, meaning that you would effectively die partially intestate.
A testator can amend their will any time before their death, with amendments being regulated by Section 2(1)(b) of the Will Act. An amendment can include a deletion, addition or alteration. It may also include an interlineation which is the insertion of additional text between sentences. If a testator chooses to make amendments on their existing will, they need to ensure that they sign as close as possible to the amendment and that this signature is witnessed by two competent witnesses.
Legislation also makes provision for a testator to revoke or delete their entire will at any time before their death, and this can either be done by executing a new will which includes a revocation clause. Alternatively, they may choose to do so by destroying all copies of their will.