Your will expresses your final wishes about the distribution of your assets when you die. Given its importance it is astounding that the process of drafting a will is not taken more seriously, ideally with the assistance of someone experienced in will drafting. The need to ensure that emotions are kept in check and that all formalities are adhered to is critical.
Neglecting this can lead to disputes, court actions, unnecessary delays and additional costs to the estate, says Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa (Fisa).
Anybody over the age of 16 years can make a valid will and must be in sound and sober mind at the time, although the law assumes that this is the case. Anyone who alleges otherwise must prove it.
One of the first formalities that must be adhered to is ensuring that the will is signed by two witnesses who are over the age of 14 and able to testify in court if necessary, and that both these witnesses are in the presence of the testator (the drafter of the will) and each other when they sign.
Van Vuren says it is not necessary for the two witnesses to be present when the testator signs the will, but then the testator must acknowledge the signature to the witnesses when they sign. While the testator has to sign each page of the will the witnesses are by law only required to sign the last page. However, it is good practice to ensure that the witnesses sign each page of the document to remove all chances of a dispute over whether all the pages formed part of the original document when the witnesses signed it.
If there is any evidence that the three parties were not all present at the time when the witnesses signed the will, the validity of the will may be disputed.
The formalities are even more important when someone is unable to sign their name because of illiteracy, incapacity or illness. A will can be signed by the testator by the making of a mark, or can be signed by someone else behalf of and on instruction of the testator. In both cases a commissioner of oaths must certify both the identity of the testator and that the document is the will of the testator.
When someone else signs on behalf of the testator, at least five people must be present simultaneously: the testator, the person signing on behalf of the testator, two witnesses and the commissioner of oaths. The commissioner of oaths cannot validly sign as one of the witnesses.
You cannot be an heir and a witness
Van Vuren says there have been cases where people who stood to benefit from a will also signed as witnesses. This simple act will disqualify them from receiving the benefit and they will have to approach the courts to declare them competent to receive a benefit under the will.
In a real life example a woman with two daughters bequeathed everything to the one daughter because the other one was going through a messy divorce and the mother was afraid the inheritance would be in danger in that process. The idea was that the named heir should look after her sister.
Unfortunately the heir wrote part of the will in her own hand and signed as a witness.
“The Wills Act prohibits an heir from signing as a witness or writing part of the will in their own hand,” says Van Vuren. “In this case the only heir to the estate could not benefit from her mother’s will because she broke this rule.”
In a case like this the heir must approach the court for a declaration of competence to inherit which will only be granted if the court is satisfied that that person or their spouse did not defraud or unduly influence the testator. To obtain such a court order costs money and delays the administration of the estate.
The Wills Act makes provision that such a disqualified heir may inherit up to the level of what would have been inherited under the rules of intestate succession. In the example above the daughter who was not supposed to inherit, would inherit a substantial portion because of the rules of intestate succession.
“It is never a good idea to do your own will if you do not know the rules, and even if you do,” warns Van Vuren. Making a will is an emotional experience for most people and you need an objective mind to assist, and preferably a knowledgeable one.
He says South African law places a high premium on freedom of testation. However, if the will is disputed in court on allegations of undue influence or even threats, the witnesses will be called to testify whether there was any indication that the testator was not acting voluntarily.
Undue influence could, for example, be suspected where there is a large age gap between the testator and a second or third spouse, and the children of the testator from a previous marriage are totally disinherited.
Another example could be where the testator disinherits a child and there is evidence that a sibling of that disinherited child was causing friction between the testator and the disinherited child by feeding the testator false information.
“The main reason for the strict formalities is to prevent fraud, or undue influence over the testator.”
In recent times the status of electronic wills has been the subject of a few court cases. The courts have had to be called upon to determine whether the wills were valid because they were not signed by either the testator or witnesses.
In a recent case an email was not accepted as valid by the Western Cape High Court, even though the first sentence of an email to the deceased’s girlfriend read: “This serves as my final will and testament.”
Van Vuren explains that the high court can be approached with an application to order the master of the court to accept a document that does not comply with the formalities as a will if it can be proved that the now-deceased person:
- Drafted or signed the will, and
- Did so with the intention that the document be their last will.
Van Vuren says in this case the deceased’s girlfriend brought an application asking the court to accept the email as a valid will. The application was opposed by his ex-wife, whom the deceased had divorced several years earlier. The deceased’s last valid will was signed before the divorce and bequeathed the whole residue of the estate to the ex-wife.
The Wills Act also provides that if a testator dies within three months of the date of divorce the ex-spouse is deemed to have passed away before the date of divorce, effectively removing the ex-spouse as an heir under that will.
If the will was not amended or revoked by a new will in which the ex-spouse is not an heir and the testator dies more than three months after the divorce, the ex-spouse is deemed to be ‘revived’ and can inherit again.
In the early 2000s the Free State High Court accepted as a will a printout of an electronic document that was drafted by the deceased on his work computer. Clear instructions about the document and the password to access and open it were found in a suicide note that was found next to his bed. That application was unopposed.
“It is easy to prevent disputes from arising – if the rules are followed and the formalities are strictly adhered to,” says Van Vuren.
Brought to you by Fisa.