What makes a will valid?
It’s not uncommon for a financial adviser to act as a witness when a client signs a will and – for the sake of expedience – to find a second “witness” to sign the will later. This may seem a harmless thing to do, but your will is invalid if a “witness” is not actually present when you sign it.
When a will is found to be invalid, it is the equivalent of dying intestate – meaning without a will – which will result in your assets being distributed according to the law of intestate succession, rather than according to your wishes.
Ronel Williams, legal and technical manager at Nedgroup Trust, says you must ensure that you have two witnesses present when you sign your will. And not only are your witnesses required to watch you sign your will, but both must also sign in each other’s presence.
According to the Wills Act, witnesses must be 14 years or older and competent to testify in court.
At a conference in Cape Town hosted by The Fiduciary Institute of South Africa (Fisa), Williams explained the formalities for a valid will and the problems that typically arise when you do not comply with these formalities.
“Although the requirements are fairly simple to comply with, increasingly the courts have to hear applications for the approval of a will where these requirements have not been met,” Williams says.
Major problems occur when an heir or the spouse of a testator (the person for whom the will is drawn up) signs as a witness, she says.
“An heir or a testator’s spouse must not sign as a witness, as that would disqualify him or her from receiving any benefit from the will. To remedy this, an application has to be made to the High Court to prove that the heir who signed as a witness did not unduly influence the testator.
“If the heir is entitled to inherit in terms of the laws of intestacy (as in the case of a spouse, descendant or ascendant), a court application is not required, but then the heir is entitled to receive only as much as he or she would have in the case of intestacy,” she says.
Williams says problems with wills also arise when:
* An heir writes out changes on the will. The Wills Act provides that a person who writes any part of the will, as well as his or her spouse at that time, is disqualified from receiving any benefit from the will.
Williams told of the case of a man who had made handwritten alterations to his wife’s will and, as a result, was disqualified from inheriting more than the intestate portion of his wife’s estate.
“Where a person is married, the spouse’s intestate portion is limited to the greater of R125 000 or a child’s share, which is calculated by dividing the available balance for distribution by the number of children plus one. If the testator therefore had two children, a child’s share will be a third. If there are no children, the spouse will inherit the entire estate,” Williams says.
* Clients sign with a combination of a full signature and initials. Williams says the lack of consistency makes it difficult to determine whether the will has indeed been signed by the client. For this reason, one should not initial each page and sign in full on the last page. It is better to sign in a consistent way on all pages, she says.
* Signatures appear to be different on different pages. “Again, the lack of consistency makes it difficult to determine whether the will has indeed been signed by the client, and could pose problems when the Master has to register the will,” Williams says.
* Not all pages are signed and/or an incomplete will is returned (pages are missing). “Both of these scenarios would lead to the will not complying with the formalities of the Wills Act and would require a court application to have it declared valid,” Williams says.
* Amendments are not signed properly, or at all. The Wills Act requires all amendments to be signed by the testator and witnesses before the amendments are regarded as valid.
* The testator signs the will in a foreign country. “As long as the will is signed according to the requirements of the Wills Act, it will be valid. If, however, it is signed in accordance with the requirements of the foreign country, the Master will require confirmation by the foreign authorities that the will has been signed in terms of their laws before accepting the will as valid,” Williams says.
* A commissioner of oaths signs as a witness. “The Act provides that the commissioner must sign in addition to the two witnesses,” she says.
* The will is signed by a thumbprint or mark, but there is no certificate attached to the will to certify the identity of the testator or witness.
Williams says: “The Wills Act provides that a person can sign his will by the making of a mark. In such an instance, a Commissioner of Oaths has to co-sign the will and confirm by means of a certificate on the will that he has satisfied himself as to the identity of the person and that the will is that of the person.”
There are different scenarios in which a person would make his mark and each one would require a slightly differently worded certificate:
– If the person is blind, the certificate should confirm that the will was read to the person who acknowledged the contents before signing the will;
– If the person cannot read, a similar confirmation is required; and
– If the person cannot write (for example, does not have the use of their hands), the certificate must confirm that the mark made is that of the person.
* In the case of a mark instead of a signature, instead of issuing a certificate, a member of the South African Police Service simply stamps and signs the will. “Such a signature or stamp will not comply with the requirement of the Act,” she says.
* It is not clear whether the “signature” is an initial or a mark. “Where the client signs by making his initial, the executor often cannot determine whether it is the client’s mark or initial. This poses a problem, because if it is a mark, a commissioner’s certificate is required,” she says.
WHO CAN HELP?
Members of The Fiduciary Institute of South Africa (Fisa) are professionally qualified to draw up a will for you. To find a Fisa member in your area, phone 082 449 2569 or visit http://fidsa.org.za