Legal Talk

All wills must be in writing. The person making a will is called the testator or testatrix (if female). The will must sign at the end of the document and the signature of the testator/testatrix must be made in the presence of two or more competent witnesses.

Any person over the age of 14 is considered a competent witness, provided they are not beneficiaries in the will. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix anywhere on the page.

If an person is unable to sign the will, for example if the person is too frail due to ill-health or even if the person is illiterate, then the testator can make a mark by making of a cross or using a thumbprint of the person to signify that this is his or her last will and testament. In this case there are strict requirements, which needs to be complied with in order to ensure that the Master of the High Court does not reject the will.

A commissioner of oaths must certify that he/she has satisfied himself/herself as to the identity of the testator and that the will so signed is the will of the testator. The commissioner of oaths must sign his/her certificate and he/she must also sign each other page of the will, anywhere on the page.

The reasons for these checks and balances are obvious as the Master will need to be satisfied that there was no undue influence made at the time the testator signed his will or that the testator fully understood what he was committing himself to. Amendments to a will can only be made while executing a will or after the date of execution of the will.

Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading. When amending a will, the same witnesses who signed the original will need not sign it.

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce. If you made a will and you later divorce your spouse, you have three months to amend the will, from date of divorce. In the event you do not change the will thereafter, any bequest in your will to your divorced spouse will be upheld.

If you die without leaving a will or a valid will, your estate will devolve according to the Intestate Succession Act and your property may then be inherited to persons that you may not necessarily wish to benefit from your estate.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.