In order to give effect to your last wishes, your will must comply with the following minimum requirements as stipulated in the Wills Act, says Berrie Botha, executive head of Sanlam Trust.
The Minimum requirements are the following: It must be in writing; The testator must be 16 years of age or older and be capable of contracting; You as testator must sign every page in the presence of two competent witnesses. Signing includes initialing and competent witnesses means people of 14 years of age and older who are capable of contracting and giving evidence in court, and the witnesses must also sign the last page. Sanlam Trust still prefers every page to be signed in full by all parties.
When amendments such as corrections, additions and deletions are made to a will, the testator and two competent witnesses must sign next to such amendments in each other’s presence. The initial witnesses need not sign an already signed will again.
The Act does not stipulate that a will has to be dated. However, it is very important and recommended that this be done, as at the time of death more than one valid will could exist that need to be read together. There might also be conflicting requests and provisions. It is therefore also important to state in your will that it revokes all previous wills and codicils.
The will may be drawn up by the testator or another person. If the other person who draws up the will is also nominated as an heir or executor, risks could be involved. Such a person will only be able to inherit to the extent he or she would have inherited intestate had there been no will.
The fact that the testator is not able to sign his/her name and can only make a cross, mark or fingerprint, does not make a will invalid. However, the witnesses must be able to sign. When a testator cannot sign his/her name, the following minimum requirements must be met:
- The cross, mark or fingerprint must be made before a Commissioner of Oaths.
- The Commissioner of Oaths must sign every page, as well as next to amendments, and affix the prescribed certificate and sign at the end of the will, and The Commissioner of Oaths may not be a witness.
- Only one copy needs to be signed originally, but it is recommended that at least two copies be signed originally and kept safe separately in order to minimise the risk of destruction.
Anyone may draw up his or her own will or have it drawn up, but it is important that the person who draws it up has the necessary experience and specialist knowledge. He/She must be familiar with the latest estate planning techniques and products in the financial and fiduciary industries. He/She must also be financially strong in order to be able to settle any possible successful claim for damages a person may suffer as a result of an incorrect or invalid will. The Attorneys Act stipulates who may charge a fee to draft a will.