How to sign your Will to ensure that it is valid
A Will is one of the most important documents a person will sign during their lifetime, yet many Wills do not comply with the formal legal requirements for a valid Will.
Most people go through all the time and effort to finalise the content of their Wills but slip up when it comes to complying with the formalities (signing it correctly).
An Invalid Will means that your estate will devolve according to the Intestate Law of Succession (in other words, not your own wishes).
The requirements for a valid Will are set out in section 2(1) of the Wills Act 7 of 1953 and include the following:
- The Will must be signed at the end thereof by the testator (or by someone else in the presence of the testator and at his request);
- The testator or such other person must sign in the presence of two competent witnesses;
- The witnesses must sign the Will in the presence of the testator and of each other (and, if applicable, in the presence of such other person);
- If the Will consists of more than one page, each page must be signed by the testator (or by someone else in the presence of the testator and at his request). Since 1 October 1992 it is no longer necessary for the witnesses to sign each page (they are only required to sign the last page), but for practical reasons, it is still advisable that they do so;
- If the testator makes a mark or the Will is signed by somebody else in his presence and at his request, a Commissioner of Oaths must certify at the end of the Will that he identified the testator and that the Will is the Will of the testator.
It may be that this irregularity is never picked up on and that it does not cause any problems. When, however, a Will is contested after a testator’s death, the first thing that will be checked is how and when the Will was signed. If it is revealed that the testator did not comply with any of the above-mentioned formalities (e.g., the testator and the witnesses did not sign the Will in each other’s presence), the Will is invalid.
It is, however, possible for a Will which does not comply with all of the formalities to be declared valid by a Court in terms of clause 2(3) of the Wills Act, but this would require a (potentially opposed) Court application by the heirs. In a recent case, Delport v Le Roux & Others, the Durban High Court refused to exercise its discretion to declare a Will valid where the witnesses did not sign the Will in the presence of the testator and each other. This resulted in the beneficiaries in the challenged Will not benefiting and a previous Will of the testator being used. Given the uncertainties and expenses involved in a Court application, ensuring that a Will complies with all the necessary formalities is important.
Please always make sure that the Will is signed correctly or contact us to assist you.
