During the Level 4 lockdown, the Fiduciary Institute of Southern Africa (FISA) requested that the drafting and execution (or signature) of wills be declared an essential service during the lockdown period. With the move to Level 3 and businesses re-opening, this is no longer required. But why was this request made in the first place?
In terms of the Wills Act, when someone executes (or signs) his or her will, it must be done in accordance with certain rules. We refer to these rules as the formalities for the execution of a will. A will that is not executed in accordance with these formalities is invalid, ie it is of no force and effect and the contents of the will can be ignored. The invalidity of a will can be overcome by means of a court order in terms of section 2(3) of the Wills Act, however the costs of going to court to prove that a will is valid can be prohibitive, not to mention the lengthy delays of the legal system which could be disastrous for the testator’s family waiting for a result. Furthermore, there are certain requirements that must be proven before the court can make the necessary order.
So, what are these formalities? In terms of section 2(1) of the Wills Act:
- The will must be in writing and signed at the end thereof by the testator (person making the will);
- If the will consists of more than one page, all the pages must be signed by the testator;
- The signature of the testator must be made in the presence of two or more competent witnesses;
- The witnesses must attest and sign the will in the presence of the testator and each other;
- Where the testator signs the will with a mark, a commissioner of oaths must be present and specific certification formalities apply.
A competent witness is any person above the age of 14 years who is not incompetent to give evidence in court. Even though the Wills Act doesn’t specify that the witnesses must be independent, we recommend that family members do not act as witnesses to the will. This is because in terms of Section 4A of the Wills Act, a witness to a will, or his/her spouse at the time of witnessing, lacks capacity to inherit under that will. This means that if someone mentioned in the will (ie a beneficiary or heir) witnesses the will, the witness/beneficiary may be deprived of his/her inheritance, even though the will remains valid.