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Requirements Of A Valid Will – What Is A Will And How Does It Work

Updated: Jun 28




WHAT IS A WILL?

A will is a legal document that clearly expresses how a person wishes his or her property to be distributed after his/her death.


REQUIREMENTS OF A VALID WILL

The Wills Act 7 of 1953 regulates specific requirements which a Will must comply with in order for it to be valid.The requirements for a valid Will are as follows:

  • A person must be over the age of 16 (sixteen) years to write a will.

  • The Will must be in writing. This mean a Will can either be typed or handwritten. If a Will is handwritten, the person who writes the Will is not permitted to be nominated as a beneficiary in that specific Will.

  • The will must be signed by both the testator (that is the legal term for a male whose will it is. The female legal term is testatrix) and two competent witnesses. A competent witness is a person aged at least (14) fourteen years, and also having sufficient mental capacity. (The testator can sign the Will by making a mark, such as a cross or a thumb print, but this mark must be certified by a Commissioner of Oaths. Witnesses cannot sign the Will by making a mark).

  • A witness must not have any direct or indirect interest in the Will he/she witnesses.

  • If at any time you wish to change something in the will, add an heir or disinherit someone, you should fill out a codicil to the Will. This is an amendment (change) to a Will and it can be done at any time. Of course you are free at any stage to prepare a new Will which, once signed, will automatically supersede the previous Will.

Section 2(3) of the Wills Act is known as the rescue provision. This provision states that, if a testator drafts an amended document or executes a document which is not in the form of a Will and then subsequently dies, if a Court is satisfied from evidence presented to it that such document was intended to be his Will or an amendment of his Will then the Court can order the Master of the High Court to accept this document as a valid testament, even though it does not comply with the formalities for the execution or amendment of Wills.If you need help with the drafting or amendment of your Will, please feel free to contact us for expert assistance.

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