What Are the Legal Requirements for a Valid Will in South Africa?

An essential part of an effective estate plan includes having a will drafted by an experienced professional to ensure that it meets all the legal requirements and is valid. The Wills Act 7 of 1953 sets out the specific requirements that a will must meet to be valid in South African law.

The requirements for a valid will include the following:

• It must be in writing i.e. typed or handwritten. However, if a will is handwritten, the person who writes the will by hand must not be named as a beneficiary in the will. It is also important to note that there are currently additional requirements requested by the Masters office for lodging handwritten wills of the deceased. Therefore having a typed out and signed professionally done will is always a good choice for peace of mind.
• It must be signed at the end thereof. If the will is only one page long, it must be signed by the testator at the end of the writing. If the will is longer than one page, every page other than the last page must be signed by the testator anywhere on the page and the last page must be signed at the end of the writing.
• The testator (person making the will) must be 16 years or older and mentally capable of appreciating the nature and effect of his or her act.
•  It must be signed by two competent witnesses. The witnesses must both be over 14 years of age to be competent witnesses.

The exceptions to the general rule that the testator must sign the will are as follows:

• A will may be signed by the testator by the making of a mark. Examples include a cross or a thumbprint. If a will is signed by the testator by the making of a mark, the mark must be made in the presence of a commissioner of oaths who must certify on the will that he has satisfied himself as to the identity of the testator and that the will is indeed the will of the testator. The commissioner of oaths must then also sign each page of the will other than the page on which his certificate appears.
• It may be signed by another person (an amanuensis) on behalf of and by the direction of the testator. If a will is signed by an amanuensis on behalf of the testator, it must be signed in the presence of a commissioner of oaths who must certify on the will that he has satisfied himself as to the identity of the testator and that the will is indeed the will of the testator. The commissioner of oaths must then also sign each page of the will other than the page on which his certificate appears.

Although it is not a requirement for a will to be dated to be valid, it is important to date a will to determine whether it is the testator’s latest will. This will prevent disputes and delays if more than one valid will is found after the testator has died.

An essential part of an effective estate plan includes having a will drafted by a professional to ensure that it meets all the legal requirements. Further, making sure that your original will is stored in a secure place to prevent your will from being damaged or destroyed when you are gone will ensure that your estate is distributed as you wish it to be and that your loved ones will be provided for when you are gone.

At Marsh Fidelity, our team of experienced professionals can help you to ensure that your will and your estate are in order and that your assets and loved ones are protected when you pass away. Contact us today at [email protected] or visit our website at https://marshfidelity.wpenginepowered.com to find out more about our services.